Public Bill Committee

[Sir Nicholas Winterton in the Chair]

Clause 53

Return from category 1 territory

Amendment proposed (this day): 253, in clause 53, page 65, line 27, at end insert
save that time during which the person was outside the United Kingdom shall be disregarded for the purposes of consideration for parole or early release in any event..(James Brokenshire.)

Question again proposed, That the amendment be made.

Nicholas Winterton: I remind the Committee that with this amendment, we are considering amendment 254, in clause 54, page 66, line 32, at end insert
save that time during which the person was outside the United Kingdom shall be disregarded for the purposes of consideration for parole or early release in any event..
As my co-Chairman Hugh Bayley no doubt said to the Committee this morning, may I welcome you back from a short half-term recess? I spent most of the time in Namibia, which was previously German South-West Africa. It was a most enjoyable Commonwealth Parliamentary Association visit and I am reinvigorated to preside over the remaining stagesall except for oneof this Public Bill Committee. I hope that all members of the Committee had a very restful and enjoyable recess; I am sure that Ministers did and I express the same hope for members of the Opposition parties.
I gather that the Minister was responding to a debate on amendment 253 and, according to those who advise me, I believe that he was expressing the hope that the Opposition spokesman might consider withdrawing his amendment. Therefore, I ask the Minister of State, Vernon Coaker, to complete his remarks.

Vernon Coaker: I have some further information that may be of benefit to the hon. Members for Oxford, West and Abingdon (Dr. Harris) and for Hornchurch (James Brokenshire), in answer to the questions that they put earlier on our debate on amendment 253.
First, I want to thank the hon. Member for Oxford, West and Abingdonno doubt, he will intervene if I do not fully answer the comments that he madefor highlighting the error in clause 48(6)(a), which refers to
the Council Decision on the establishment, operation and use of the second generation Schengen Information System of 12 December 2006.
We have looked into the issue and we will amend subsection 6(a), so that it refers to the Council Decision on the establishment, operation and use of the second generation Schengen information system of 12 June 2007. That change can be made by way of printing, so I am advised by parliamentary counsel that there is no need for an amendment.
At the end of the previous sitting, I was responding to the hon. Member for Hornchurch, who raised a particularly important point that we must clarify; I thank him again for the helpful points that he made. I was explaining that, where someone has been extradited to an EU member state before the end of their UK sentence, clause 53 makes it clear that time spent in custody overseas will only fall to be deducted from the relevant UK sentence where the person in question has been extradited to face trial and has then been acquitted of all charges.
However, where time falls to be deducted from a UK sentence, as the hon. Member for Hornchurch rightly pointed out, it is possible for someone who was extradited at a time when they were serving the custodial period of any sentence to return to the UK after the date on which they would ordinarily have been released on licence. The reassurance that I think the hon. Member for Hornchurch is seeking in tabling this amendment is that, where this situation arises, a person returning to the UK would not be automatically released into the community without proper consideration being given to the terms of their release. I am pleased to be able to reassure him that that certainly will not be the case. Proposed new section 59(6)(b), which would be inserted into the Extradition Act 2003 by clause 53, makes it clear that where a person who has been extradited while in custody returns to the UK and is entitled to be released on licence, they are
liable to be detained...by a constable or immigration officer
so that they can then be formally released.
The purpose of this limited period of detention is to meet the need that the hon. Member for Hornchurch has flagged up; that is, to ensure that all the usual procedures that must be carefully followed before someone is released on licence are followed where a person who has been extradited returns to the UK. Crucially, that will allow the authorities to ensure that the conditions of the licence fit the offender and that all the relevant bodies charged with dealing with offenders after release are aware of the situation. While clause 53 would allow someone to be detained in order for them to be released on licence, detention would only be for as long as was strictly necessary in order for the person to be released.
That was raised by Liberty in the public evidence sessions, and I want to make it absolutely clear that the purpose of detention here is solely in order for the person to have their licence imposed or for them to be released. However, this is an important point and I will consider whether we need to do something further. Effectively, we are detaining someone who has come back and who, had they been serving their sentence in the UK, would already have been released on licence. Clearly, detaining someone in that situation meets the public policy need of ensuring that the conditions of a licence are put in place. There is an issue about making sure that any detention needed to fulfil those licence conditions is as short as possible. While that is implicit in the Bill, and I have made it explicit in my remarks in Committee, the question is whether it should be explicit in the Bill. I think I need to reflect on that further as the Bill makes progress. I hope those remarks have helped the hon. Member for Hornchurch and that he will consider withdrawing his amendment.

James Brokenshire: I thank the Minister for his helpful response. He has highlighted the application of new section 59(6)(b), and he has made some points which clarify and explain the intent behind that provision and how it interacts with other provisions, including the need to consider any public protection issues and whether a licence is appropriate, and the need to ensure that such periods of detention are expressly for that purpose.
That is an important clarification and I am grateful to the Minister for putting that on the record. Equally, it would be helpful to have some express clarification for a court or anyone else seeking to interpret the Bill, and I accept what he said about reflecting on that. We look forward to seeing what appears on Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Vernon Coaker: I beg to move amendment 224, in clause 53, page 66, line 6, leave out or section 28 of the Crime (Sentences) Act 1997.

Nicholas Winterton: With this it will be convenient to consider Government amendments 225 to 229.

Vernon Coaker: I shall be brief. Essentially, tackling international and transnational crime is a key priority for all of us. One consequence of the increasingly transnational nature of modern crime is that cases may arise in which an individual whose extradition is requested by one country is, as we have just discussed, serving a prison sentence or facing criminal proceedings in the country to which a request for extradition is made. Situations also arise where a country will only extradite its own national on the express undertaking of the UK that the person will be returned to serve any sentence imposed in the UK in the extraditing country.
Clauses 53, 54 and 55 set out an efficient and effective framework for dealing with cases of this kind. As the Committee will no doubt appreciate, it is vital that this framework is fully compliant with sentencing legislation in Scotland and Northern Ireland. To achieve that, these six amendments introduce two minor changes which are replicated for each of the three clauses. That will ensure that the provisions are fully effective in both Scotland and Northern Ireland.

Amendment 224 agreed to.

Amendment made: 225, in clause 53, page 66, line 11, at end insert
(c) a duty to release the person under section 1, 1AA or 7(1) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 or section 5, 11(2), 13, 19 or 23 of the Custodial Sentences and Weapons (Scotland) Act 2007, or
(d) a duty to release the person under section 1 of the Northern Ireland (Remission of Sentences) Act 1995, Article 26 of the Criminal Justice (Northern Ireland) Order 1996 or Article 17 or 18(8) of the Criminal Justice (Northern Ireland) Order 2008..(Mr. Coaker.)

Clause 53, as amended, ordered to stand part of the Bill.

Clause 54

Return from category 2 territory

Amendments made: 226, in clause 54, page 67, line 8, leave out
or section 28 of the Crime (Sentences) Act 1997.
Amendment 227, in clause 54, page 67, line 13, at end insert
(c) a duty to release the person under section 1, 1AA or 7(1) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 or section 5, 11(2), 13, 19 or 23 of the Custodial Sentences and Weapons (Scotland) Act 2007, or
(d) a duty to release the person under section 1 of the Northern Ireland (Remission of Sentences) Act 1995, Article 26 of the Criminal Justice (Northern Ireland) Order 1996 or Article 17 or 18(8) of the Criminal Justice (Northern Ireland) Order 2008..(Mr. Coaker.)

Clause 54, as amended, ordered to stand part of the Bill.

Clause 55

Return to extraditing territory etc

Amendments made: 228, in clause 55, page 69, line 3, leave out
or section 28 of the Crime (Sentences) Act 1997.
Amendment 229, in clause 55, page 69, line 8, at end insert
(iii) a duty to release the person under section 1, 1AA or 7(1) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 or section 5, 11(2), 13, 19 or 23 of the Custodial Sentences and Weapons (Scotland) Act 2007, or
(iv) a duty to release the person under section 1 of the Northern Ireland (Remission of Sentences) Act 1995, Article 26 of the Criminal Justice (Northern Ireland) Order 1996 or Article 17 or 18(8) of the Criminal Justice (Northern Ireland) Order 2008;.(Mr. Coaker.)

Evan Harris: I beg to move amendment 72, in clause 55, page 70, line 3, leave out
the Secretary of State is not satisfied that the return is compatible
and insert
to do so would be incompatible.

Nicholas Winterton: With this it will be convenient to discuss the following: amendment 73, in clause 55, page 70, line 5, after 1998, insert
or any other international treaty which the United Kingdom is a party to or would be contrary to the interests of justice..
Amendment 74, in clause 55, page 70, line 5, at end insert
(1A) If subsection (1) applies
(a) an undertaking to return a person to a territory given under section 153A or 153C, and
(b) any power given under section 153A and 153C by reference to the undertaking are of no effect..

Evan Harris: I am pleased to be able to speak to these amendments. First, I wish to raise a couple of concerns about the structure of the extradition clauses, of which clause 55 is, I think, the most important. I would be grateful if the Minister could give me some reassurance.
The Extradition Act 2003 was not particularly controversial in the House but it attracted some controversy at that time, as it was a way of implementing the European arrest warrant. Part of the basis of that legislation, and of this Bill, is that there is no need for a UK court, when it receives notice of a European arrest warrant, to look behind that application for prima facia evidence or to have regard to the need for dual criminality. In other words, it is perfectly possible, by design, that someone should be extradited for an offence under a European arrest warrant to a country where that offence is not considered an offence. That produces problems and leads to legal cases.
Such applications can create problems not only for the individuals concerned and their human rights, but for our courts. For example, the application could be vague. There have been examples in the press of applications for swindling, computer offences and speech offences such as xenophobia and incitement to hatred. Only incitement to religious hatred is an offence without intent in this country and there are high thresholds for other incitement offences. Is the Minister satisfied that it is reasonable to base a clause on a presumption that all EU member states that are subject to the European arrest warrant have fair laws and processes?
For example, we have specifically decided that holocaust denial, however odious, will not be made a criminal offence, so is it appropriate that we make it possible for other EU member states to seek to extradite for such an offence someone who is not a citizen of their country and who has not published in their country except on the internet? The Minister will be aware of the controversy over the case of Dr. Toben, in which the magistrates in Westminster dismissed the application, citing vagueness, and in the end he was not extradited only because the German Government decided not to appeal to the High Court. Is it right that we should have legislation that fails to make it clear that that is not the sort of case that is appropriate for extradition? Speech offences are not offences in this country, so there is no dual criminality, and what about cases in which a country seeks the extradition of a citizen of another countrypotentially a British citizenfor publishing certain material? I would be grateful if the Minister clarified that, because otherwise we will have to come back to that issue at a later stage to debate more specific amendments.
The matter is made worse by the fact that under the 2003 Act, as I understand it, the Home Secretary may by Order in Council extend the provisions to non-EU countries, such as Azerbaijan, Georgia and the Russian Federation, which have all benefited from such Orders in Council. There is a significant human rights concern underlying the whole framework of the legislation.
I will now turn to amendments 72, 73 and 74, the aims of which will be apparent to Members, and outline them briefly, because we need to make progress. They seek to remove the subjective view of the Secretary of State on the question of whether a return would be incompatible with the meaning of the Human Rights Act 1998. They would do several things. First, they would make that decision the result of an objective test so that the question of whether the Secretary of State is satisfied is not simply the opinion of the Secretary of State.
Secondly, the amendments would give full access to the courts and not simply access to review that decision by judicial review, which is not the ideal way in which to raise issues of fact that go behind the decision, although the Minister might take a different view, as the Government often do, depending on the case. Indeed, when the Government are defending a judicial review, they often say that it is a matter of deciding whether the process is wrong or whether the decision is so unreasonable as to be an abuse of process. When someone is facing extradition to a country where we cannot be sure that they will be looked after in compliance with obligations that we have made, it must be reasonable that facts should be clearly testable in court.
The amendments seek to provide recognition not only for the European convention rights, but for other international treaties. An example is the United Nations convention on refugees, which was established after the second world war to provide a haven for people who might otherwise be persecuted, perhaps by prosecution, in another country.
The amendments also include a provision that would require consideration to be given to the wider interests of justice. I will give two examples in order to save time. The first example is an undertaking that is given prior to all the knowledge becoming available. Once a person is in this country, it may become clear that they have a medical condition, for example, that makes them particularly vulnerable and would put them at risk if they were extradited to the country to which the Secretary of State has given an undertaking to extradite them. A topical example is the well-known case of Gary McKinnon, who has a mental health disorder that would make him particularly vulnerable if he were transferred to an American supermax prison. We need to be capable, within our law, of giving consideration to that issue, because if someone is made to suffer on the basis of being extradited to a country or is sent back having been extradited here, that is not in the interests of justice and might not be compliant with their human rights. That is not a direct example and I am not seeking to raise that case specifically.

Vernon Coaker: I am concerned about our discussing the Gary McKinnon case, because it is currently before the courts.

Evan Harris: As I understand it, we are discussing legislation. I am not asking the Minister to give an opinion on that case, but we are entitled to raise cases under the sub judice rule.

Nicholas Winterton: Order. May I tell the hon. Member for Oxford, West and Abingdon that, as long as he does not make specific reference to that case, which is before the courts, he is quite in order to raise the general principle? He must not refer to a specific case in any detail.

Evan Harris: I am grateful, Sir Nicholas. I hope that I was careful to state that I was referring to a case such as the one involving Gary McKinnon. I was not talking about how that particular case applies, because the facts differ in the clause under discussion; we are talking about someone who is extradited and brought to this country with a pledge that they will then be returned. I am referring to cases involving a medical condition, and the Gary McKinnon case is good example, because it shows how different countries might treat a medical condition. I will move swiftly on, as long as the Minister understands that there is nothing in the clause that recognises a change in a persons medical condition. Neither does the undertaking to remove a person to another country make such a change relevant for consideration.
The second example relates to when conditions in the country to which a person would be returned have changed since they first came here. Again, that is not made clear in the clause, and it would not be in the interests of justice for someone to be sent back to a country where there has been a substantial change in circumstances and where a fair trial, the persons welfare, or, in the case of a UK citizen, the oversight of their welfare cannot be guaranteed.
Those are the concerns raised by Liberty in relation to the clause. Furthermore, without being privy to the correspondence of the Joint Committee on Human Rightson which I serve with the MinisterI believe that the clause will exercise that Committee simply because it allows subjective tests, such as the Secretary of State being satisfied, and only refers to one of the many treaties to which we are party. It is appropriate to leave it there, and I am grateful to the Minister for listening.

James Brokenshire: The amendments tabled by the hon. Member for Oxford, West and Abingdon reflect, as he said, Libertys concerns about clause 55. Amendment 72 would replace the provision that the Secretary of State is not satisfied that the return is compatible with the European convention on human rights with a provision that such a return would be incompatible with the convention. In other words, and as the hon. Gentleman said, Liberty wish to replace a subjective requirement with an objective test.
While I fully recognise and agree that the provision should be compliant with the European convention, I question the application of these amendments and the effect they would have. Even if amendment 72 were made, if power is vested in the Secretary of State, notwithstanding that the wording would have changed and it would be compliant with the relevant convention or treaty rights, on the face of it, the assessment would potentially still be made by the Secretary of State.
I will make a further point on that because it is the sort of drafting issue with which we are concerned. While I fully respect and understand the intention behind the amendments, legal advice would need to be provided to an individual at some stage, and a judgment would have to be made on whether or not it was compliant. Therefore, without seeking to undermine the intent behind the amendments in any way, I wonder whether they will have the import that has been suggested. In all circumstances, legal advice that relies on precedent in case law provides a judgment or assessment. Therefore, I am not certain how far the changes take us forward.
Justice made an ancillary point on this issue:
It is disappointing that despite the aims of the Framework Decision to abolish extradition between EU Member States and to replace this with a system of surrender through judicial process, the Secretary of State is to be given this power rather than a judge at a hearing. We consider that the opportunity should be taken to amend the provisions to allow a hearing before a judge who will consider whether an undertaking should be given, at which the consent, or at a minimum the representations of the affected person can be considered. Without such a measure the scheme is at risk of interfering with the right to a fair hearing under article 6 ECHR.
There is an issue of practicality and balance. Justice argues that a court hearing should be appropriate in any event. In other words, it takes the line of argument that the hon. Member for Oxford, West and Abingdon has set out from Libertys paper to its natural conclusion and says that the matter should rest with the court rather than with the Secretary of State.

Evan Harris: I saw the Justice briefing. In taking out the Secretary of State, I was not inserting the judge. I believe that that is implicit because without having to wait for the Secretary of State to announce whether they are satisfied, the decision can be rolled into the same series of hearings and deliberations that are held for those contesting their extradition. That is my understanding, but it needs confirmation as I am not a lawyer.

James Brokenshire: The hon. Gentlemans intervention is helpful because it allows us to understand the purpose of his amendments more clearly. There is a question of balance and appropriateness in considering the application of these provisions. In my view, the matter should reside with the Secretary of State rather than automatically going to a court for determination. It will be interesting to hear the Ministers response and his views on compliance with the relevant convention rights. That will inform the debate further.

Evan Harris: May I point out something that I might not have done justice to in my original remarks? Amendment 74 is important and I would like a specific response from the Minister. Does the hon. Member for Hornchurch agree that the sort of wording in amendment 74 must be added to proposed new section 153D(1) to ensure that there is no discretion because of the words:
Nothing ... requires the return of a person?
If the original wording means that the Human Rights Act 1998 is likely to be breached, the powers will be nullified.

James Brokenshire: It is interesting to hear what the hon. Gentleman says. I respect the concern expressed by Liberty on compliance with convention rights, which he has articulated. It is important to ensure that there is clarity in the Bill. The current wording expresses the judgment and the need for compliance with the Human Rights Act. However, Justice and Liberty have raised interesting questions and it will be interesting to hear the Ministers response and why he believes the provisions are compliant with convention rules and will not be not subject to challenge.

Vernon Coaker: I thought that those were very good remarks. To do what the hon. Member for Oxford, West and Abingdon suggests would be illegal. The Secretary of State cannot ignore human rights issues in making a judgment to send somebody back.
I will start with amendment 74, which puts us slightly out of kilter, but it is where the debate finished. That amendment would oblige the Secretary of State not to issue an undertaking when it is found that a persons removal would breach their human rights. Who would disagree with that? We agree with the purpose of the amendment, but it is unnecessary to state explicitly that the Secretary of State cannot extradite or send someone back where their human rights will be breached, which is what amendment 74 does.

Evan Harris: It is not that.

Vernon Coaker: That is what amendment 74 does. All I am saying is that I do not disagree with it, but that it cannot be done because it is illegal.

Evan Harris: I probably did not do justice to amendment 74, so I will be clear about what it seeks to do in addition to the statement of the obvious that the Minister has identified. It seeks to ensure that the powers set out in the Bill that are consequential on the undertakingfor example, the power to keep a person in custody until returnfall away if the undertaking cannot be complied with. In other words, they are null and void. It does not necessarily follow from this framework that those powers are null and void even if they are not exercised. I think the amendment is a tidier way than the current wording of making that clear. It is not because I failed to grasp the obvious.

Vernon Coaker: I apologise. I was not trying to be disrespectful to the hon. Gentleman. I take the point he is trying to make that what he has pointed out could be consequential to all of this. That does not alter the fact that it is unnecessary. Nobody disagrees with the point that has been made.
Sir Nicholas, if you remember in the evidence sessions, I was delighted with the inclusion of new section 153D in the Bill. I sometimes go to the Joint Committee on Human Rights and have a good relationship with it. The hon. Gentleman knows that I spend a lot of time defending the need for human rights to be protected in legislation. The Home Office and I have had many fruitful discussions with the JCHR to try to do better with respect to human rights compliance. One reason for this provision is the fact that Ialong with the Home Officeam increasingly determined to ensure that human rights provisions are contained explicitly within legislation.
The hon. Gentleman was here this morning when I mentioned that Liberty had said that though some improvements, debates and discussions might be neededwhich is what we are havingthis is not a titanic battle of principle. This is not necessarily a decision to extradite. It is to return someone pursuant to an undertaking. Any decision to extraditeor any of these mattershas to be compliant with the ECHR and the Human Rights Act. As for the involvement of the courtsto which the hon. Members for Oxford, West and Abingdon and for Hornchurch referredthe Secretary of State is accountable to the courts of the land. Although he or she may make the initial judgment, such decisions, as we have seen in the past, can be judicially reviewed. There has to be an undertaking that everything done is consistent with that.
A couple of other points were made by the hon. Member for Oxford, West and Abingdon. The terms of proposed new section 153D make it clear that a person cannot be returned pursuant to a temporary surrender undertaken where to do so would breach the ECHR. It is explicitly there. Whether a return would breach the ECHR would be considered at the moment of return. So any matters arising after extradition to the UK, for example regime change, would be taken into account at that time. Again, some of the things that the hon. Gentleman is pointing outsuch as, what happens if this happensare partly what would be used to inform the decisions made as to whether somebody should be returned. As to the idea of leaving this to the discretion of the Secretary of State, the Secretary of State does not have any discretion when it comes to acting in a way that is ECHR-compliant. She has to act in that way. I became slightly agitated because it is unlawful to do otherwise. This is the point that I was emphatically trying to make to the hon. Gentleman.
As he mentioned, dual criminality is the principle that the crimes for which a person is sought must be offences in both countries for extradition to take place. He will know that there are 32 categories of offencethe most serious casesfor which dual criminality is not needed for a European arrest warrant to be issued. He mentioned the case of Dr. Toben, who was the subject of an EAW request from Germany for holocaust denial and was arrested at Heathrow in October 2008. Germany sought his extradition under the offences in the EAW for which dual criminality does not apply: xenophobia, racism and computer-related crime. The hon. Gentleman will also know that Dr. Toben was ultimately discharged by the courts. The judicial process worked.
The principle of mutual recognition underpins law enforcement instruments within the EU, including the EAW, and key to that is member states trust of each others legal systems. I have said to his hon. Friend the Member for Chesterfield that if the hon. Gentleman became an EU Minister, he would have to be very careful about saying that he did not trust the legal systems of other EU members. One of the conditions of becoming an EU member is having a legal system based on the principles that we all expect. None the less, we do not have to return somebody. The terms of the Extradition Act 2003 make it clear that if there are concerns about the fairness of a court system in a country, section 20 prohibits surrender to another member state.
I ask the Committee to resist amendments 72 and 74. I do not see the need for them and they are unnecessary as compliance with the ECHR is implicit in the Bill. To show that I am not only kind to the main Opposition spokesmen, I will say that the hon. Member for Oxford, West and Abingdon has a point with amendment 73. I hope that he relays this to his colleagues on the Joint Committee on Human Rights. The amendment refers to other international treaties, which should be taken into account when looking at issues of temporary surrender, extradition and so on. In my view, the need to take into account other treaty obligations, for example, the UN refugee convention, is implicit in the terms of the ECHR. However, I will look at what amendment 73 suggests, which is whether the Bill needs to be more explicit about the fact that as well as complying with ECHR regulations and requirements, some other conventions should be adhered to.
Although I was fairly robust on amendments 72 and 74 and the general points about compliance with the ECHR, I hope that the esteemed member of the JCHR will look at what I have said about amendment 73I am frightened of the JCHR. I think that the hon. Gentleman has an important point about what may need to be in the Bill. Human rights considerations are extremely important to me, which is why the proposed new section is in the Bill. Everything that he is seeking to achieve through amendments 72 and 74 is already achieved through the provisions in the Bill. With those remarks, I ask him to consider withdrawing the amendment.

Evan Harris: Flattery is very helpful with me, but cuts no ice with the JCHR, so the Minister will still have to face the music there in due course. Obviously, I welcome what he has just said about amendment 73 and I will come on to that.
I would first like to make a point regarding his response to my earlier points. Membership of the EU does not, even in the Liberal Democrats, involve the suspension of critical faculties; just as other countries, and indeed the Council of Europe, can be critical of some of our laws, for example, on terror. Just because we are a member of the Council of Europe does not mean that, by definition, everything that we do is acceptable. I do not think thereforeI am not suggesting the Minister said this in these termsthat simply accepting someone as a new EU member means that there is no appraisal to be made on an individual case. I am not saying that he said that there was no appraisal, but the point is that we need to keep our wits about us.
The second point relates to Dr. Toben as an example of that. Although he escaped extradition, it was only because the Germans decided not to press their appeal in the High Court. So, it was not that the court overruled them on the basis of it not being a good enough charge; nor was it on the issue of the offence that he was charged with being extraterritorial because of a website hosted in Australia; it was because they chose not to, and I fear that there will be other people who will be caught by that, but I accept that it is not a matter for today.
On the issues raised by the amendments, the Minister has saidthree times nowthat he notes that Liberty has said that there is no titanic battle on this part of the Bill, and I think that is true. However, I just hope that we come to a time when that will be obvious, and the Minister is wise to rejoice, or express relief, that he is not in a pitched battle with human rights organisations over this part of the Bill. I think that isI do not want to be too partisan about thismore a judgment on some of the other legislation where he has been engaged with them in such a contest, rather than necessarily saying that everything in the Bill is fine.

Vernon Coaker: Does the hon. Gentleman think that it is actually because we have included proposed new section 153D on the face of the Bill? Does he not also think that that is a part of why, perhaps, compared with some of the battles that have been fought in the past, they have not been fought as hard on this specific part of the Bill?

Evan Harris: The Minister is very keen to get recognition for the inclusion of proposed new section 153D. If it was not there, the situation would be worse and it is a worthy step forward. I accept that and I am sure that others will note it too, including in the other placeof course I accept that.
Turning to the descriptions he has made of the three amendments, I would like to deal with what the hon. Gentleman said, briefly, on amendment 72. He says that the Home Secretary has no discretion as to whether to abide by the convention rights, and of course that is true. However, he still has to accept a subjective provision here, because the Secretary of State merelyI use that word appropriately and deliberatelyhas to satisfy herself that
the return is compatible with the convention rights.
As soon as she does, that is it, subject only to judicial review and I do not think he addressed the point that relying on judicial review of Executive action or Executive decision-making is not satisfactory. We have just read about the appalling case of the gay asylum seeker who was sent back as a result of Executive action. Yes, the courts have intervened post-facto to argue that that was wrong and have insisted that the Home Department do what they can to get that person backwe do not know the name or country for that persons own protectionbut that is an example of a decision being judicially reviewable. That can only be done while they are in the country and it is not an ideal situation. So, although I will not press amendment 72 to a vote, I do not accept that the subjective test is adequate and the Minister will have to come back with stronger arguments at a later stage of the Bill.
Amendment 74 got some rough treatment from the Minister. I am not offended by that. I did not make the point clearly enough; that is my fault, not Libertys, and I take responsibility. Libertys point is that the proposed new section 153D states:
Nothing in section 153A or 153C requires the return of a person
in these cases. But the question is: what about the powers that have been taken after an undertaking has been given? It is not absolutely crystal clear that they become null and void at that point. I am not suggesting that the Government will return the person, given the provisions in proposed new section 153D.

Sitting suspended for a Division in the House.

On resuming

Nicholas Winterton: It is 15 minutes since we broke to vote in the House on a private Members Bill; you will see the result on the monitor. The hon. Member for Oxford, West and Abingdon was giving us the benefit of his advice regarding his amendment and I call him to resume his address.

Evan Harris: I am grateful to have returned from what I understand was a rare Liberal Democrat victory in the Chamber. We are grateful for the support of those who shared our view on that Bill.
Regarding amendment 74, I was again pointing out to the Minister my concern, which I do not think he has met, that although it is clear that no return would take place if the Secretary of State were not satisfied that the return were compatible with convention rights, it is not clear what happens to the person. Certain things will have flown from the undertaking, which is now vitiated by the Secretary of States ruling on convention rights, and I ask the Minister to consider further, perhaps in correspondence and at least before the next stage of the Bill, whether there is absolute clarity about what happens to the person left dangling in respect of either proposed new section 153A or proposed new section 153C. In one of those scenarios it is more likely that they will already be in prison, serving a sentence here perhaps.
Finally, turning to amendment 73, I am grateful to the Minister for recognising that it might be appropriate to mention the refugee convention in the Bill, after the Human Rights Act. I will bank that, but it begs the question: why not the international covenant on civil and political rights, for example, which covers similar important rights?

Vernon Coaker: I used the refugee convention as an example; I am not saying that that is the only thing that we should use. I will consider whether we should put something in the Bill, and it may be that we will use two things. With respect, I have said to the hon. Gentleman that the refugee convention strikes me as an example that should be in the Bill.

Evan Harris: I am grateful for that clarification and I will not comment further on the matter. I accept the Ministers point that changes in a country will be taken into account because the decision has to be made before return. However, I will go away and reflect on the last part of amendment 74, as it still concerns me that there may be other circumstances that do not go as far as to affect convention rights or to sufficiently persuade a Home Secretary or this Home Secretary, but which might still be contrary to the interests of justice. There can be no harm in the Government giving themselves some wriggle room here, as long as the Home Secretary does not abuse it. I cannot conceive of a Home Secretary willingly not wanting to live up to the undertakings that they have given, which can be important for diplomatic relations. Having said all that, I want to express again my gratefulness to the Minister for engaging in the debate and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 55, as amended, ordered to stand part of the Bill.

Clauses 56 and 57 ordered to stand part of the Bill.

Clause 58

Provisional arrest

Vernon Coaker: I beg to move amendment 230, in clause 58, page 71, leave out lines 18 and 19 and insert
(2) For subsections (2) and (3) substitute
(2) The person must be brought before the appropriate judge within 48 hours starting with the time when the person is arrested.
(2A) The documents specified in subsection (4) must be produced to the judge within 48 hours starting with the time when the person is arrested but this is subject to any extension under subsection (3B).
(2B) Subsection (3) applies if
(a) the person has been brought before the judge in compliance with subsection (2); but
(b) documents have not been produced to the judge in compliance with subsection (2A).
(3) The person must be brought before the judge when the documents are produced to the judge..

Nicholas Winterton: With this it will be convenient to discuss Government amendments 231 to 238.

Vernon Coaker: The amendment deals with provisional arrest. I should like to make some introductory remarks and then respond to questions that hon. Members may have. Provisional arrest is an important tool in the fight against serious and organised crime. There are cases, although rare, in which the urgency of the situation and the complexity of the case, lead member states to ask one another to arrest someone before the full European arrest warrant has been issued. Where the UK receives such a request, and there are reasonable grounds for believing that the full European arrest warrant has been or will be issued, it is open to UK law enforcement officials to arrest the person in question.
When someone is arrested under the provisional arrest powers found in section 5 of the Extradition Act 2003, section 6 requires that the person be brought before a court and a full European arrest warrant provided to the judge within 48 hours of arrest. While in the vast majority of cases this will prove unproblematic, there are two scenarios where the right time limits contained in the Act can cause problems. The first of these is where the 48-hour period runs over a weekend or a public holiday. In that situation no court would be open before which the person in question can be brought. This could result in a serious criminal being able to avoid extradition simply because of the date on which they were arrested.
The second problem with the current provisions arises in very complex cases where the member state seeking extradition is simply unable to get the formal documents justifying extradition in order within that 48-hour period. Clause 58, as drafted, sought to address these problems by allowing an application for an extension of 48 hours to be sought to both the period within which the full documents must be provided and the period in which the person must be brought before the court.
On reflection I feel that there is better and fairer solution to these problems which Government amendment 230 and Government amendments 231 to 238 seek to provide. The first change to note is that it is no longer open to the requesting state to apply for an extension of the 48-hour period within which the person in question must be brought before a UK court as the sole problem we are addressing here is that arising where the 48-hour period falls over a weekend or a public holiday. I feel that the better approach is simply to exclude these days from the calculation of the 48-hour period. We see no reason why the person arrested should not be brought before a UK court within the original 48-hour period where it does not fall on a weekend or a public holiday. I hope that that is helpful because I certainly think it is a better way of doing it.
That change and the terms of the other amendments also mean that it is absolutely clear that in the very rare cases where there is a need to apply for an extension of the period for supplying the documents justifying extradition, such an application will always be made while the person who is arrested is present in court, whether in person or by live link, so that they may resist the application and be in a position to apply for bail. Again, I think that is a significant improvement on the clause as drafted. I hope that the Committee will feel that these amendments represent a careful and considered attempt to reduce the scope of the provisional arrest amendments so as to make absolutely sure that they strike the right balance between the need to safeguard the liberty of the subject while ensuring that the UK does everything possible to fight serious international crime.

James Brokenshire: The Ministers comments on the amendments are helpful. He will know that Liberty expressed concerns about why the clause was necessary and the proportionality of the provisions. His suggestion to clarify and restrict the ambit of the clause is helpful in addressing some of those issues.
It would be helpful for the Minister to address one further point. It is worth putting the concerns of Justice on the record. It states:
A warrant can be transmitted electronically pursuant to section 204, thereby instantaneously and with the introduction of SISII, this will be the normal means of transmission. We consider it inconceivable that any scenario could justify an arrest without warrant, on reasonable belief that a warrant will arrive rather than an offence having been committed, and remand for 96 hours.
Justice suggests that it should be more instantaneous. The Minister has explained that circumstances may arise that fall outside Justices concern that the instantaneous electronic transmission of warrants might lead to situations where documentation is awaited. It would be helpful to consider that. Any further clarification that the Minister can provide on Justices concerns over the additional time would be welcome.
If there is an increase in the speed of transmission through the Schengen information system or other forms of electronic transmission of appropriate documentation, it would be appropriate to make it clear that in one way we are moving in one direction and in another way we are moving in another.

Evan Harris: I echo the hon. Gentlemans view. He recognises, as do Justice and Liberty, the importance of article 5 of the European convention on human rights. Even though the Minister gave a good explanation of where we will be after we accept the amendments, as I am sure we will, those will also be subject to scrutiny against article 5. The hon. Member for Hornchurch made a good fist of analysing the areas that we will have to look at further. That said, I too welcome the amendments.

Vernon Coaker: I have tried with the amendments to address some of the points that have been made. Like everybody else, I do not like the idea of provisional arrests. We all agree that if we are not careful, such procedures might lead to an unacceptable erosion of liberty. There is a balance to be struck between the role of the state in protecting the public and the need for citizens to be protected against the encroachment of the state.
In answer to the hon. Member for Hornchurch, the issue is not the time taken to transmit the warrant, but the time taken to get the case together to make the request to the court in the member state. In any case, a UK court would grant an extension only when the documents could not reasonably have been provided within the original 48-hour period. If the requesting state had things sorted they would clearly be able to get the documents there. I think that I have answered his questions. I hope that the Committee will support the Government amendments.

Amendment 230 agreed to.

Amendments made: 231, in clause 58, page 71, line 20, at beginning insert
While the person is before the judge in pursuance of subsection (2),.
232, in clause 58, page 71, line 21, leave out (3) and insert (2A).
233, in clause 58, page 71, line 24, leave out (2) and insert (2A).
234, in clause 58, page 71, line 28, leave out subsection (3D).
235, in clause 58, page 71, line 31, at end insert
(3A) After subsection (5) insert
(5A) Subsection (5B) applies if
(a) the person is before the judge in pursuance of subsection (2); and
(b) the documents specified in subsection (4) have not been produced to the judge.
(5B) The judge must remand the person in custody or on bail (subject to subsection (6)).
(3B) In subsection (6) after subsection (2) insert , (2A) or (3)..
236, in clause 58, page 71, line 32, leave out subsection (4).
237, in clause 58, page 71, line 33, at end insert
(5) After subsection (8) insert
(8A) In calculating a period of 48 hours for the purposes of this section no account is to be taken of
(a) any Saturday or Sunday;
(b) Christmas Day;
(c) Good Friday; or
(d) any day falling within subsection (8B).
(8B) The following days fall within this subsection
(a) in Scotland, any day prescribed under section 8(2) of the Criminal Procedure (Scotland) Act 1995 as a court holiday in the court of the appropriate judge;
(b) in any part of the United Kingdom, any day that is a bank holiday under the Banking and Financial Dealings Act 1971 in that part of the United Kingdom..
238, in clause 58, page 71, line 33, at end insert
(6) In section 7(1)(b) of the Extradition Act 2003 (application of provisions for verifying the identity of the person arrested) for is arrested under section 5 and section 6(2) substitute arrested under section 5 is brought before the appropriate judge under section 6 and section 6(2A)..(Mr. Coaker.)

Clause 58, as amended, ordered to stand part of the Bill.

Clause 59

Use of live link in extradition proceedings

Question proposed, That the clause stand part of the Bill.

Evan Harris: As I understand it from the explanatory notes, the Government do not believe that article 6 applies to extradition hearingsthat is, the right to a fair trial. Nevertheless, I still think it is necessary for the Government to provide on the record some justification of why it wants to move to giving the judge the power to provide for live-link directions. I question whether the Government are certaingiven everything we have discussedthat article 6 does not apply to extradition hearings in respect of the ECHR and to ask in any event what the justifications are for this. I am sure the Minister has a justification, which he is ready to give.

Vernon Coaker: Article 6as the hon. Member for Oxford, West and Abingdon knows because he knows the answer to the questiondoes not apply to extradition hearings.
Clauses 48 and 49 will provide further improvements to the European arrest warrant mechanism in the UK. It is predicted that access to the SIS II will enable law enforcement agencies in the UK to make an additional 1,200 arrests per year subject to these warrants, while the improvements to public safety that these clauses will provide are of great significance and importance. As the European arrest warrant is subject to judicial proceedings this will place a greater administrative burden on the court service. Clause 59 will in part address this problem by enabling live links to be used in extradition cases.
This amendment to the Extradition Act 2003 will mean that all initial and remand hearings can, at the direction of the appropriate judgeI hope that hon. Members heard thattake place via live link. This will not only provide greater efficiency when dealing with extradition hearings but also ensure that those subject to EAW and extradition requests do not need to make potentially lengthy journeys for very short extradition hearings. It is important to note that the subject of the request will continue to attend the substantive extradition hearing.
Furthermore, the clause makes it clear that the judge may not direct that the hearing take place via live link if he feels that the interests of justice will not be served. The interest of justice, I know, is something that the hon. Gentleman often wants read into the record, so I am doing so. The clause will ensure that the mechanism in place in the UK to deal with the EAW and extradition requests is both efficient in dealing with rising numbers of judicial proceedings and will ensure fairness to the subject of the request. I hope that helps the hon. Gentleman.

Evan Harris: I am grateful to the Minister for reading in that issue about the interests of justice. He makes a very important point, which I will mention en passant as he did, that although article 6 does not apply and therefore the Human Rights Act does not apply here, there are interests of justice that might apply and force the court to make a different decision. That might also apply to the other parts of this Bill that we have just discussed. I think the Minister has dealt with the point I raised and I am grateful to him.

Vernon Coaker: I am glad that I gave way to the hon. Gentleman because I agree with the points he has made. They are now on the record and are important points that people who read our proceedings will be able to see.

Question put and agreed to.

Clause 59 accordingly ordered to stand part of the Bill.

Clause 60

Security planning for airports

David Ruffley: I beg to move amendment 292, in clause 60, page 74, line 26, after officer, insert
or a chief officer of another police force who has lead responsibility for security or serious and organised operations under any police force collaboration agreement relating to the area in which the aerodrome is situated.

Nicholas Winterton: With this it will be convenient to discuss the following: amendment 293, in clause 60, page 76, line 26, at end insert
or a chief officer of another police force who has lead responsibility for security or serious and organised operations under any police force collaboration agreement relating to the area in which the aerodrome is situated.
Amendment 291, in clause 60, page 78, line 3, leave out from who to first the in line 4 and insert represents.
Government amendment 299.

David Ruffley: Welcome back from Namibia, Sir Nicholas. It is a pleasure to see you looking so refreshed and chairing the Committee with your usual verve, and indeed with even more verve after your recuperatory recess break.
Clause 60 and the clauses that follow relating to aviation security are important, but they are not without controversy, for reasons I will move on to in a moment. Clause 60 provides for the establishment, crucially, of a risk advisory group and a security executive group at aerodromes. Risk advisory groups will be required to produce a comprehensive risk report at the outset that will include analysis of risks to the aerodrome and make recommendations regarding the actions necessary to mitigate such risks. The membership of that RAG will include a representative of the aerodrome manager and a representative of the chief officer of police in that area as a minimum, and the manager of the aerodrome will have discretion to appoint such additional members as he considers necessary.
A risk report will be put together by that group, which will then be considered by a security executive group. The SEG is a different body in the sense that it has a different membership. It will make judgments on the security measures to be taken for the aerodrome and decide which party should be responsible for executing that security measure. Those decisions will form the content of the aerodrome security planASPwhich will formally document the security measures to be taken. The SEGs membership is different from that of the RAG and will include, as a minimum, a representative of the aerodrome manager, representatives of the chief officer of police and the police authority of the relevant area and representatives of airlines operating at the airportsuch people are not within the RAG.
On the face of it, clause 60 looks a little bureaucratic. Why do we need two groups, often with overlapping membership? My understanding is that the Minister, in drafting this, thought that there might be a conflict of interest in a body that on the one hand analyses risk and on the other hand has to pay for the measures that mitigate that risk. I assume that the reason for having two groups rather than onethe Minister may correct me if I am wrongis that the risk analysis cannot be short-changed by the people making the decisions downgrading the risk because they do not want to pay for it. If my understanding is correct, those two groups are separate for that reason.

Jim Fitzpatrick: May I simplify the situation, at the invitation of the hon. Gentleman? The reason for the two groups is very much as he has described it. Previously, we often saw analysis and the design of a plan that was not put into action. The two separate groups have separate responsibilities: one designs the plan and the other implements it. In that instance, there is clear responsibility attributed to each.

David Ruffley: That was my understanding, and it is an important point to make, because members of the industry believe that it is overly bureaucratic. I can see the rationale, and the Minister has described it.
It is also important that a plan may specify that security stakeholders make payments to other security stakeholders in connection with the delivery of the plan, mitigating the risks that have been identified. That makes it a controversial clause. As most people do, I always follow the money. If one does that, one always discovers that people are sometimes loth to cough up, so there are issues that need to be teased out.
The explanatory notes on proposed new section 24AE(5) state:
Although the police are not directly specified as a stakeholder to whom payments may be made, this subsection does not prevent an ASP from specifying payments to be made in respect of the polices delivery of a security measure. However, the expectation is that details of such payments will be contained within a Police Services Agreement (PSA).
That is another agreement to which we will have to be advertent, which, the notes explain,
is an agreement made between an aerodrome manager, the Chief Officer of police and a representative of the police authority for the relevant area.
The agreement will include the level of policing provided at the aerodrome; any payments to be made by the aerodromes manager; any accommodation facilities to be provided by the manager and so on.
I have already indicated that the measures are controversial. When the aviation security provisions were aired back in spring 2008, I think that it was suggested that they would be part of a transport security Bill. At that time, the Airport Operators Associations chief executive warned that the Government should not expect a blank cheque from business when many regional airports and low-cost airlines were struggling with the economic downturn and higher fuel prices. That has been a recurrent theme in all the representations made to members of the Committeecertainly on our sideprior to our sittings.
The Sheffield Telegraph reported previous difficulties between South Yorkshire police and Robin Hood airport, where the airport
will be forced to foot the bill for its policing under a new law proposed by the Government.
The proposed changes are, in effect, the substance of the clause under discussion, and the Yorkshire Evening Post labelled themI am not saying that I agree with this languagea terror tax. It reported:
Leeds Bradford Airport will be slapped with a multi-million pound terror tax under a new law proposed by the Government. 
Legislation unveiled in yesterdays Queen's Speech will see the airport forced to pay West Yorkshire Police for its growing policing costs.
The new law will transfer responsibility for threat and risk analysis at regional airportsand for picking up the billfrom the local police force to the airport operator.
I will not continue in such a critical vein, but that gives a sense of the debate taking place outside the Committee. It is a familiar debate and one expects such a set of arguments from aerodrome managers and airline operators who are worried about the transfer of cost.
In a comprehensive and balanced briefing to the Committee, Manchester Airports Group indicated three chief concerns with the proposals. One is cost, the second is value for money, and the third is the balance of strength in any ensuing negotiations between the two groups covered by the clause, namely airports and local police services.
On cost, under the current regime there are designated airports, such as that in Manchester, that already face a significant policing bill, first through business rates and secondly through direct payments to the police authority. MAG estimates that £9 million is paid to Greater Manchester police in policing costs, and a further £13 million in business rates. MAG argues that consideration should be given to the amount that airports currently cough up for policing costs at aerodromes, with business rates being an obvious example.
On value for money, MAG makes a crucial point, which is reflected in the amendments tabled by my hon. Friend the Member for Hornchurch and me. It says:
The police do not provide an adequate breakdown of how the funding is spent, nor do they fully justify the levels of policing needed.
That is a reference to the current regime. But following the logic of the alleged lack of transparency on the part of police forces who are currently providing policing services, the argument would seem equally valid to the new regime in the absence of assurances from the Minister and any changes to the clause. In short, the allegation is that there is a lack of transparency and accountability in current legislation, which is arguably not addressed in the Bill.
The third point that Manchester Airports Group makes is on the negotiating position of the police, which is strong vis-Ã -vis the airports, and it also relates to the second point about value for money. It states:
When the figures are challenged by airports, the police can always cite security reasons or ACPO guidelines as being the rationale behind their demands, without having to fully explain or justify these.
Before I come to the amendments, I should like to refer to one other important point raised by the Airport Operators Association. It challenges the suggestion that sometimes comes from the Government that a parallel should operatean argument by analogy, as it werebetween the policing of private property, such as a football stadium during football matches, where charges are levied on the football club or its owners to pay for policing costs on a Saturday afternoon, and the policing of airports. The suggestion is that the airports should pay just as readily as a football club for consuming policing services.
The Airport Operators Association take issue with that:
Airports are different. Larger ones in particular are often referred to as iconic targets and Chief Constables, who have a legal accountability for policing in their constabulary area, often have strong views about how airports should be policed.
The idea that airports are different in kind from football stadiums seems a very good one. The concern expressed by the Airport Operators Association is shared by, among others, Virgin Atlantic, which makes a similar point.
I turn now to amendments 292, 293 and 291. Amendment 292 relates to RAGs, which include the chief officer of the relevant force. It makes it clear that it might also be the lead officer in any collaboration agreement that is delivering policing services to an airport. We had many debates on collaboration agreements under clause 5. There will be situations where there will be level 2 and level 3 crime, which is what aviation security is all about. Policing services might not be delivered by the police authority in whose boundary the aerodrome is situated. To take an example, Greater Manchester police deliver the services in the case of Manchester airport, which may be near your fine residence, Sir Nicholas.
Under a future Government after the Bill has come into force there might be a collaboration agreement right across the north-west for delivering airport aviation security services. It might be, for the sake of argument, that the Greater Manchester police is not the lead force. The chief constable who is responsible for making the decisions, who would be on the RAG under this clause, might be a chief constable in a neighbouring area. Amendment 292 endeavours to say that the RAG should also include a chief officer of another force who has lead responsibility for security or serious organised operations under any collaboration agreement that might be enforced.
In short, that amendment is a technical one for the avoidance of doubtit does not challenge the principle of the clause. It is a belt-and-braces suggestion because a lead force collaboration chief officer would not be within the ambit of this clause. It is probing and I am sure the Minister will want to reflect on whether I am right. I drafted it rather late as it sprang out at me as I was drinking my late-night cocoa reading the Bill, as one does. I am interested in the Ministers comments as to whether that is covered. The same argument relates to amendment 293it is the same point.
Amendment 291 relates to a different issue, the SEG. At the moment the drafting says:
The manager of the aerodrome must nominate as a member of the group an individual who appears to the manager to represent the interests of the operators.
It struck me reading this late at night to ask on what basis the manager can nominate an individual who appears to him to represent the interests of the operator. My amendment seeks to say represents the interests of the operator. Why is it appears to represent? The drafting is a bit loose and could lead to confusion. It should be perfectly clear who the operators wish to have as the individual nominated to represent them. I was completely mystified. I do not think the current drafting adds anything. Why can it not be cleaner with a straightforward represents? It is on that basis of a technical probing amendment that I will terminate my remarks.

Jim Fitzpatrick: I welcome you back to the Committee, Sir Nicholas. It is good to hear you in better voice than when we broke and it is nice to see that you have recovered.
I am also pleased to make my contribution on aviation security and offer brief respite to my ministerial colleagues from the scrutiny they have been receiving from all parts of the House.
In discussing amendments 292 and 293, I will try to explain the background as the hon. Member for Bury St. Edmunds has invited me to and then reinforce some points in response to issues he has raised and, I hope, reassure him as to the drafting of the Bill. These amendments seek to amend the provisions in such a way as to allow chief officers of forces other than the local airport police force to play a role in the delivery of airport security. Amendment 291 seeks to amend the provisions relating to the representation of airlines on security executive groups, as questioned by the hon. Gentleman.
I will turn first to amendments 292 and 293. The proposed revisions to new sections 24AB and 24AE in clause 60 seek to enable the chief officer of another police force who, working in collaboration with the local police force, has lead responsibility for the security of the airport to be represented on the risk assessment group and to be responsible for delivering security measures in the airport security plan. We understand that the intention behind the amendment is essentially to allow airports to put out a contract for dedicated policing services to competitive tender, attracting bids from forces around the country. Although we agree that the requirements should provide sufficient flexibility to allow local decisions to be made about who can most effectively deliver security measures, we do not consider that that should extend to allowing any police force to deliver those measures.
There is an important security point to consider here. Whether one is thinking of airport policing in terms of terrorism, serious and organised crime or simply low-level crime, local community intelligence is key to delivering effective policing. Creating a situation in which one force polices the local community, while another polices the airport runs the risk of disrupting the policing links between airport and community, and that is not something that we consider advisable. In any event, at a practical level there are real issues with the concept of competitive tendering for airport policing. The chief officer of police is responsible for policing within that force area, and any policing undertaken by representatives of another force could take place only with his or her consent. Whether such consent is issued would be a matter for the chief officer of police concerned and there is no guarantee that such consent would be provided.
Ruling out competitive tendering for airport policing does not mean, however, that we are placing airport operators in a position where they cannot negotiate effective and efficient ways of meeting their security obligations. The provisions in the Bill do not allow the police simply to impose the terms of airport security plans and police services agreements upon an unsuspecting and vulnerable operatornot that I have met such an animal. We expect stakeholders to think creatively about efficient and effective ways of delivering security. Dedicated policing is only one way to mitigate a threat. Employing an alternative approach may of course be entirely acceptable. Ultimately, if a matter came to dispute, the Secretary of State would issue a determination, based on the evidence presented, on the most effective way to mitigate the threat. At times, that may mean policing and at other times it may mean alternative measures.
The Government agree with the concern behind amendment 291, namely that subjectivity might result in airlines not being fairly represented on the security executive group. In circumstances in which there is disagreement about who is best placed to represent airlines on the SEG, the airport manager may use his general power of appointment in proposed new section 24AG(5) to appoint more than one airline representative to the group. The airport manager is required to act reasonably in his use of powers of appointment, so, where there is clearly an airline interest that is not being adequately represented at SEG level, the airport manager would be obliged to make any necessary appointment. In any event, in circumstances in which there was any doubt about whether an airline was being adequately represented, it would also be open to the Secretary of State to consider making his own nomination.
In light of that, there is little to be achieved from the airport manager being compelled to go through a formal exercise to establish who is best placed to be appointed first. That could generate a great deal of work for the manager, as well as an unnecessary liability burden on the aerodrome manager to prove that the airline appointee truly speaks for all airlines at the airport. If it is unclear, the aerodrome manager will simply appoint an additional airline representative. The aviation industry has, rightly, pressed strongly for the process not to create any unnecessary bureaucratic burden and we are keen that any such burden should be avoided wherever possible.
Government amendment 299 is a minor amendment that will ensure that provisions relating to the Secretary of States power to appoint observers to the SEG are consistent with the Secretary of States other powers of appointment contained within clause 60. The amendment will ensure that express provision is made to permit the Secretary of State to revoke his nomination of observers to the SEG.
On the points that the hon. Member for Bury St. Edmunds made, it takes 15 months to do an assessment, for the SEG to prepare the airport security plan and for the police services agreement to be put in place. At the quickest, it would be at least 15 months after the Bill is enacted before airports begin to put their arrangements in place, which gives them time to plan. On value for money and a breakdown of costs, we fully agree that there must be transparency, so we would expect clear invoices and clarity in the PSA before payment. The hon. Gentleman correctly draws attention to the fact that that does not exist currently.
Parts of the critical national infrastructure, primarily power stations and railway stations as well as the football stadiums that the hon. Gentleman mentions and nuclear power stations, pay for the police they require so that they can operate in a safe and secure environment. We therefore see no inconsistency in airports operating in the same way. Finally, at many airports, an airline operators committee already exists, and it is likely that that its principal representative will simply be asked to attend the SEG as well although, as I have outlined, if there is a requirement for additional airline representation the situation is open to a secondary appointment. I hope that in light of my reassurances the hon. Gentleman will not press amendments 292, 293 and 291.

David Ruffley: The Minister has given us some useful assurances, for which I am grateful, but I wish to press him further. He started by saying that the first amendment in this group was about competitive tendering. It might be, but you will notice, Sir Nicholas, being an eagle-eyed Chairman, that there is no reference to competitive tendering and if I had meant that to be the main thrust of the amendment, being a plain-speaking Englishman I would have used the words competitive tendering. The amendment does not imply that from where I sit, and it is quite a weak amendment, according to the following argument. We would not suggest that competitive tendering for Manchester airport, for example, be a national tender that would allow Kent and Essex, for instance, to come up with a great bid and start policing the airport. Instead, where there is a geographically local collaboration agreement to deliver level 2 servicesit might be to do with serious organised crime, or drug or people trafficking and aviation securitythat might be an up-and-running collaboration agreement including a force that has the airport in its geographical boundary. That has nothing to do with, and does not imply, a competitive tendering arrangement. It might just be that the services are delivered across three, four or five forces in the collaboration agreement and that the lead chief officer is from a nearby force but is operationally, and in terms of the governance structure of the collaboration agreement, the person who makes the judgment call about security at Manchester airport.
I urge the Minister to reflect on the fact that the only person who can serve on that group is the chief officer of the force in the area where the airport is located. He might want to reflect on that with his hon. Friend the Minister for Security, Counter-Terrorism, Crime and Policing. I would understand if he were concerned about competitive tendering, but this is a technical point about collaboration agreements operating locally and about who the chief officer should be for the purposes of the group set up under the clause.

Jim Fitzpatrick: I tried to respond to that point earlier. Manchester is not alone; Gatwick also straddles two constabularies and Heathrow straddles three. Our point is that somebody has to be responsible. The main constabulary should provide the appropriate responsible person, because the links with the local community and the greater area outside are an important part of policing the airport, not just from the point of view of the police services agreement but in terms of the contact between the airport and the community, the ability to determine what is appropriate through knowing what is outside as well as inside, and ultimately because the chief constable of the local constabulary has to sign off the agreement. It is therefore much more appropriate for them to be on the group. I would not for a second expect chief constables to fail to consult with constabularies with which they have collaborative relationships and agreements because of the locations of airports. I am sure that that happens at the moment, and I would be surprised if it did not happen once the measure is passed. The new procedure will be even more transparent than the existing one.

David Ruffley: The Minister has given a helpful reply. I am not entirely convinced on his last point about collaboration agreements. However, we need to make progress so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

David Ruffley: I beg to move amendment 294, in clause 60, page 78, line 33, at end insert
provided that such agreement required of any individual shall not be unreasonably withheld.

Nicholas Winterton: With this it will be convenient to discuss amendment 295, in clause 60, page 78, line 35, at end insert
provided that such agreement required of any individual shall not be unreasonably withheld.

David Ruffley: The amendment goes to the heart of the unanimity that will be required when a security plan is signed up to. Proposed new section 24AH(2) states:
No provision may be included in an aerodrome security plan unless all the members of the group unanimously agree that it should be included.
The purpose of amendments 294 and 295 is to probe the feasibility of seeking unanimity in what may be a group of as many as a dozen people. The wording of the amendments is the same, and they both suggest that rather than a provision requiring unanimity, the
agreement required of any individual shall not be unreasonably withheld.
There would therefore be a reasonability test when individuals make their decisions. An individual could object and thus deprive the rest of the group of the unanimity required for a plan to be signed off. They might decide, perversely, not to give their consent as a bargaining chip for another part of the negotiations. The unanimity concept in the clause is problematic. Will the Minister consider a requirement that consent should not be unreasonably withheld?

Paul Holmes: The question of unanimity was raised when the Committee took evidence. Bob Jones, the chair of the Association of Police Authorities said of the current system:
Our only slight reservation, probably contrary to the airport operators, is that the current system effectively requires unanimous agreement. That is a commendable desire, but it effectively results in a position where there is an individual veto. The appeal against that...can drag on for a considerable period of time, when there may be an important security risk that needs to be addressed in the short term rather than going through such a cumbersome process. I would hope that the Committee looks at the arrangements for resolving those issues where there is not unanimous agreement.[Official Report, Policing and Crime Public Bill Committee, 27 January 2009; c. 20, Q18.]
On page 78 of the Bill, between lines 31 to 35, there are two specific requests for unanimity: one states that there must be unanimous agreement on the aerodrome security plan; and the other states that there must be unanimous agreement on variations to it. This is an appropriate point to ask the Minister to tease out the thinking on those provisions. I know that later clauses mention independent tribunals and the power that the Secretary of State has to step in and act as King Solomon by adjudicating, and the Minister will probably refer to those provisions when he replies to the debate.
The amendments offer one way of dealing with that, but they set up their own problem: if one is to define what is, and is not, reasonable, one has to look at statute and dig oneself into all sorts of problems trying to define it. The unanimity issue is very desirable, as Bob Jones said, but it can also be a great hindrance if people are to take effective decisions, so it would be good to hear the Minister explain how the Government propose to get around that issue in this clause and those that follow it and offer a possible break on effective decision making.

Jim Fitzpatrick: Although we agree that parties to an aerodrome security plan should not behave unreasonably when providing consent to the inclusion or variation of a provision, I regret to say that our view is that the amendment would complicate rather than clarify matters. Stipulating that consent to the inclusion or variation of a term in an aerodrome security plan may not unreasonably be withheld prompts the question of who would be entitled to make the decision about whether such consent is being unreasonably withheld. The dispute provisions, as presently drafted, ensure that it is the Secretary of State who is entitled to make such decisions. That ensures real clarity, which we consider essential to ensuring that stakeholders sign up to and deliver the measures contained in the aerodrome security plan.
If unanimous agreement to a provision cannot be reached after proper discussion and a serious attempt at compromise, the matter may be referred as a dispute. Requiring that cases in which consent is being unreasonably withheld go to dispute does not mean that we are creating a long and drawn-out process for dealing with such matters. If it is blatantly obvious that a party is being unreasonable in its refusal to provide consent, the Secretary of State can indicate that early in the proceedings and may ultimately award costs associated with the dispute process against the party concerned. We believe that that will act as a real incentive on parties not to force matters to the dispute stage unreasonably. We believe that the provisions ensure real clarity on the issue of agreement to the terms to be included in an aerodrome security plan and provide sensible and practical mechanisms for dealing with parties who seek to behave unreasonably.
The hon. Member for Bury St. Edmunds said that that could offer police forces a veto on whether the plan is adequate, but it also offers the airport operators a veto. It is a double-edged sword, and that is what we believe gives protection and ensures that the process is equitable, transparent and agreeable and that it is known that costs can be awarded against someone who appears unreasonable. We will have the benchmark of other airports to show what is happening in airports of a similar size.
We believe that requiring unanimity actually places a burden on both the airport operator and the police to act reasonable because they know that the Secretary of State is waiting in the wings to act as arbitrator if a dispute arises. Where it was previously suggested that there be an independent panel to arbitrate on disputes, it was the stakeholders who said during consultation that they wanted ministerial oversight and the responsibility to rest with the Department for Transport. We accepted that suggestion and have now made the amendment to the Bill. We think that that strengthens the arrangements for workable and acceptable plans, and on that basis I ask the hon. Gentleman to withdraw the amendment.

David Ruffley: I am grateful to the Minister. The last part of his remarks is interesting and important. He describes a symmetry which, in a perfect world, would operate to ensure that one part is not unreasonably vetoed, because of the knowledge that, at some later date, they could be paid back in kind. On the basis of the Ministers explanation, the unanimity might actually have a deterrent effect. If I could use an analogy from cold war nuclear strategy, it is mutually assured destruction; that is a flight of fancy that I am importing to our debate.
On a serious point, on the basis that the Minister is right, and I think that he probably he is, I am content to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: 299, in clause 60, page 80, line 24, after to (6) insert or (8).(Jim Fitzpatrick.)

David Ruffley: I beg to move amendment 257, in clause 60, page 81, line 19, at end insert , or
(c) a dispute about the costs of policing to be met by the aerodrome manager..

Nicholas Winterton: With this it will be convenient to discuss the following:
Amendment 296, in clause 60, page 82, line 3, leave out thinks and insert reasonably believes.
Amendment 297, in clause 60, page 82, line 15, at end insert
provided that the Secretary of State believes that the amount of such payment in respect of costs is reasonable and proportionate having regard to all the relevant circumstances..
Amendment 298, in clause 60, page 83, line 27, at end insert
provided that the Secretary of State believes that the amount of such payment in respect of costs is reasonable and proportionate having regard to all the relevant circumstances..
Government amendment 300.
Amendment 255, in clause 60, page 83, line 39, at end insert
and, for the avoidance of doubt, any such appeal shall not be restricted to the judicial review of the Secretary of States decision..
Government amendments 301 and 302.

David Ruffley: The amendment seeks to clarify the drafting. In subsection(2) of the proposed new section, 24AM Meaning of dispute about security planning, there are two examples of areas relating to disputes about security planning. Subsection(2)(a) is
a dispute about the contents of an aerodrome security plan,
and subsection (2)(b) is
a dispute about the implementation of an aerodrome security plan for the aerodrome..
However, what we do not have in subsection (2) is clarification of disputes relating to the costs of policing to be met by the aerodrome managers. Amendment 257 seeks to insert clarification, a new little (c), which makes it clear that disputes can relate, not just to the contents or the implementation of an aerodrome security plan, but to any dispute about the costs of policing to be met by the aerodrome manager. The reason that it does need to be spelt out is the real concern that we have already heard about from aerodrome operatorsand even airlines, but mainly aerodrome operatorsregarding the costs of policing.
The Minister might suggest that my amendment, which defines disputes and relates to costs, is actually caught by subsection 2(a)in other words,
a dispute about the contents of an aerodrome security plan.
He might have a point, but I think that it is worth spelling out on the face of the Bill that disputes do, in fact, relate to the costs of policing to be borne by an aerodrome manager, because the Yorkshire Post, using rather colourful language, suggested that it was a terror tax.
The payments that this part of the Bill implies, are payments that are going to be extracted from private businesses, aerodrome operators, and in that sense it can be called a taxit is a tax of a kind. Whenever imposts are levied on private individuals or corporate entities, we have to be careful to ensure that the extraction of money is open and transparent. I know that the Minister will want to assure us that the Bill gives more transparency than the current regime. We know that that comfort is needed because of the plethora of representations that members of the Committeecertainly on this sidehave received about the lack of transparency and the apparent inability of some police forces to explain exactly what it is that they are charging for. The amendment flags up that important point.
I shall turn to amendment 296. The Bill gives the Secretary of State a power to intervene in a dispute even if there has been no formal referral of that dispute to the Secretary of State by one of the parties affected. For him to intervene, the Secretary of State must only think that there is a disputethinks is the word in the clause. That is a bit weak. The Secretary of State wakes up and thinks that there is a dispute. It is an unusual word to find in legislation and it leapt out at me, so I proffer the deletion of thinks and the insertion of reasonably believes. That makes clear that the Secretary of State cannot skittishly or coquettishly think that there is a dispute before using his or her powers to intervene.
Broadly the same point is being made in amendments 297 and 298. The relevant proposed new subsections may require a party to take steps to resolve a dispute and clearly include a requirement to make a payment. As the amendments say, we need to be clear
that the Secretary of State believes that the amount of such payment in respect of costs is reasonable and proportionate having regard to all the relevant circumstances.
Finally, amendment 255, in my name and that of my hon. Friend the Member for Hornchurch, is a probing amendment to ensure that it is clear that appealing a Secretary of States decision will not be restricted to judicial review. It may have been a fault on my part, but I was not clear where in the appeal mechanism a formal judicial review form of appeal would operate. I would be grateful if the Minister could clarify that for me, given my all too unforgivably hazy understanding of how that appeal mechanism would relate to judicial review. In that spirit of honest inquiry, I proffer these amendments and look forward to the Ministers response.

Jim Fitzpatrick: Amendments 257 and 296 both relate to disputes. The first concerns the cost of policing and the other deals with the initiation of dispute proceedings. Amendment 255 considers the right of appeal. Amendments 297 and 298 both relate to how the Secretary of State apportions the costs of resolving a dispute concerning an airport security plan to those parties in dispute. Government Amendments 300 to 302 clarify, revise and ensure consistency of approach. I will look at each of those in turn.
Amendment 257 would allow disputes about the cost of policing to be raised in the context of the provisions relating to security planning. It is worth stating from the outset that the Bill already allows parties to raise disputes about the costs of policing. We recognise that it is absolutely essential for airport operators and the police to be able formally to dispute costs. This is why we have made provision for this in the Bill.
Proposed new section 29A of schedule 5 of the Bill allows airports, police forces and police authorities to dispute the terms of a police services agreement. The PSA is the document that will contain information about payments to be made by the airport to the police, and the services that the police will provide in exchange for these payments. But although we are clear that stakeholders must be able to dispute the cost of policing, we do not believe that they should be able to do this before they have agreed whether or not a dedicated police presence is actually required at the airport. This is what this amendment would requirewhat it is seekingand, with respect, we do not think that it would make much sense.
The airport security provisions as drafted require stakeholders to adopt a logical process when planning and delivering security at airports. First, risks and threats to the airport are assessed and set out in a risk report. Secondly, stakeholders agree on what security measures are necessary to mitigate these threats, and these are set out in an airport security plan. Thirdly, if the airport security plan shows that a dedicated police presence is necessary to mitigate one or more of the threats to the airport, a police services agreement is drawn up.
Stakeholders are able to access dispute resolution proceedings at both stages two and three of this process. At stage two, when the airport security plan is being drawn up, the current provisions already allow stakeholders to dispute whether a dedicated police presence is actually needed to mitigate any given threat. This is provided for at subsection 24AM of clause 60. Once the airport security plan is agreed, it will be clear whether a dedicated police presence is actually required at the airport. If it is, stakeholders can proceed with stage three, which is the process of drawing up a police services agreement.
On occasion, it may not be possible to reach agreement as to policing costs. The provisions therefore allow stakeholders to dispute the costs of policing, by accessing the dispute resolution proceedings attached to the PSA provisions. These are contained at subsection 29A of schedule 5 of the Bill.
Structuring the dispute resolution proceedings in this way ensures that parties must agree whether a dedicated police presence is actually required at the airport before parties start becoming involved in discussions about costs. I hope the hon. Member for Bury St. Edmunds will be reassured that there are provisions in the Bill that will allow stakeholders to take disagreements about the costs of policing to dispute but at the appropriate stage.
The suggested wording change in amendment 296 to section 24AO implies that without the substitution of the word thinks with reasonably believes, that the Secretary of State might somehow act unreasonably in making a judgment as to whether a dispute might exist in relation to an airport security plan. With respect to colleagues opposite, this represents a misunderstanding about how the Secretary of State is required to carry out statutory responsibilities. The well established rules of natural justice already require the Secretary of State to act reasonably in using any statutory power. For this reason, the suggested amendment is unnecessary.
Amendments 297 and 298 both relate to how the Secretary of State apportions the costs of resolving a dispute concerning an airport security plan to those parties in dispute. The Government believe that it is only right that the taxpayer should not be responsible for meeting the costs of a dispute. Rather, costs associated with resolving the dispute, for example, the costs of providing experts to assist in its resolution, should be met by the parties in dispute. In apportioning costs to a party or parties, the Secretary of State will have regard to whether those involved have acted reasonably. In other words, costs will not necessarily be split equally between parties. In making any decision as to the costs that should be met by disputing parties, the Secretary of State will naturally judge whether his decision is reasonable and proportionate, having considered all of the relevant circumstances. This is the way in which any Secretary of State executes his legal responsibilities; it is unnecessary to prescribe this approach in legislation.
Amendment 300 makes express provision that the Secretary of State may not, as part of any determination on an ASP, require any other party to make payments to the chief officer of police for the relevant area. This is to ensure consistency in relation to the provisions concerning the content of ASPs. Amendment 255 to proposed section 24AR seeks to ensure that those delivering measures in an airport security plan are able to appeal any decision made by the Secretary of State in relation to a plan on the ground that it may not be a correct decision. If the right to appeal the Secretary of States decision were to be limited to judicial review, the decision could be challenged only on a limited basis. In the main, the factors that could be considered would be as follows: first, whether the Secretary of State was acting within his or her powers; secondly, whether fair procedure had been applied; and thirdly, whether the decision was reasonable in the sense of whether it amounted to an abuse of power. Indeed, we heard part of the definition of judicial review from the hon. Member for Oxford, West and Abingdon in relation to another part of the Bill.
The Government fully agree that the Secretary of States determination should be challengeable in the High Court on the grounds that, given the available evidence, a more appropriate decision about an airport security plan could have been made. That is why proposed subsection 24AR(1) is included. Without an express provision for appeal to the High Court, the right to challenge a decision by the Secretary of State would be restricted to judicial review. I am aware that some members of the Committee are far better acquainted with the law than I am; they will not need me to tell them that the amendment would result in a far more limited right of appeal than that included in the Bill.
As a matter of law, there is no doubt that the clause would not restrict appeals against the Secretary of State's decision to that of judicial review. Given that the present drafting already achieves the outcome intended by the amendment, the Governments view is that the amendment is unnecessary.
Government amendment 301 simply revises the existing phrasing. Amendment 302 ensures that a consistent definition is applied wherever variants of dispute relating to airport security plans are referred to in clause 60. I invite the Committee not to press amendments 257, 296 to 298 and 255.

David Ruffley: I am grateful to the Minister. He will understand that by their very nature the amendments are probing. Indeed, as a former lawyer in administrative law, I am aware of the Wednesbury principles on unreasonableness and the rest of it, and that Ministers have to abide by the rules of natural justice as developed in administrative case law. Through the amendments, we were seeking to get the Minister to confirm how the dispute resolution procedure and the judicial review of decisions would operate. He gave a most eloquent exposition of how the clause will operate. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: 300, in clause 60, page 83, line 27, at end insert
(4A) Subsection (4)(a) does not apply in relation to security measures taken by the chief officer of police for the relevant police area..
301, in clause 60, page 84, line 7, leave out
modifications specified in the order
and insert specified modifications.
302, in clause 60, page 84, line 18, at end insert
dispute about security planning for an aerodrome, dispute about the contents of an aerodrome security plan and dispute about the implementation of an aerodrome security plan have the meanings given by section 24AM(2) to (4);.(Jim Fitzpatrick.)

Clause 60, as amended, ordered to stand part of the Bill.

Clause 61 ordered to stand part of the Bill.

Schedule 5

Amendment of Part 3 of the Aviation Security Act 1982

David Ruffley: I beg to move amendment 258, in schedule 5, page 133, line 8, at end insert
(8) In relation to disputes to which this section applies, the Secretary of State shall require that the police provider provides all parties to the dispute full and transparent information about the resource deployments and justifications for those deployments.
(9) In determining disputes under this section, the Secretary of State shall have regard to the principles of transparency and accountability in relation to the policing costs that are reasonable to be born by the aerodrome manager.
(10) Such principles will have regard, inter alia, to the following
(a) whether an alternative police provider would have made different operational resource judgements based on the identified risks (and such comparison may include references to other airports with similar risk profiles);
(b) whether an alternative police provider would have provided those resources at a lower cost..
Clause 61 and the introduction of schedule 5 are important. Schedule 5 will omit sections 25, 25A and 25B of the Aviation Security Act 1982 and insert new text. It will change the current regime and remove the system of designation whereby only some aerodrome operators pay for policing at their aerodromes. All airport operators requiring a dedicated police presence at their aerodromenot all dowill have to pay for services provided by the police. There must be agreement on whether police services are required at an aerodrome.
Dispute resolution, which has been alluded to in a different context, is at the heart of amendment 258, which I tabled with my hon. Friend the Member for Hornchurch. It would amend the schedule so that in relation to disputes,
the Secretary of State shall require that the police provider provides all parties to the dispute full and transparent information about the resource deployments and justifications for those deployments.
It also states:
the Secretary of State shall have regard to the principles of transparency and accountability in relation to the policing costs that are reasonable to be born by the aerodrome manager.
As was alluded to in earlier debates, there must also be regard to
whether an alternative police provider would have made different operational resource judgements based on the identified risks
and to
whether an alternative police provider would have provided those resources at a lower cost.
In short, the purpose of the amendment is to tease out once again the transparency of policing costs and the requirements that must be met in that regard.
The Minister should give a full reply to this debate because cost is an issue that most concerns those who have contacted Committee members. What has struck me is not that aerodrome managers and operators are going to die in the ditch over the concept that they have to cough up for policing. Some think that it is totally iniquitous, but many believe that the principle in the Bill is sound. However, they wish to ensure that any payments they must make are levied in a transparent way. I gave examples earlier of operators who have suggested that under the current regime some police forces will merely say, This is a security risk and this is the level of policing. Now pay your money. The purpose of the amendment is to tease out how we might improve the current regime, which appears to be inadequate for many operators.

Jim Fitzpatrick: The amendment is clearly designed to ensure that the Secretary of States determination in resolving disputes about policing at aerodromes is transparent, fair and proportionate and that it provides value for money. Those are the very factors that were considered in drafting the schedule so I understand why the hon. Gentleman wants to ensure that it has that effect. As I mentioned, stakeholders in industry and the police have welcomed the decision to change the final arbiter in disputes from a panel of independent experts to the Secretary of State for Transport precisely because they believe that it will provide sufficient accountability for decisions and will be fair and proportionate.
The amendment seeks to achieve the desired outcome by placing specific requirements on the Secretary of State, which we believe add no value to provisions that already provide broad powers to ensure that a fair and thorough determination is made.
Proposed new section 29C (5) is drafted in broad terms to allow the Secretary of State to gather information from relevant parties, whoever those may be. That extends to the airport operator and the police as well as other relevant organisations. The measure was included to ensure that the relevant police force supplies information on resourcing, as described in the amendment under proposed section 29C (8). By using powers under proposed new section 29C (5), the Secretary of State will look for clear evidence that police resources are justified in making any determination. Prescribing the specific types of information that the Secretary of State should consider is unnecessary as those powers are already in the Bill.
The amendment seeks to ensure that the police do not impose an unreasonable level of their resources at the airport, which the aerodrome manager will be required to pay for. It is also about ensuring that airports receive value for money, and we understand that. The Government are conscious of those issues, which is partly why we are instituting an end-to-end process for security planning that builds in collective agreement for the necessary security measures based on agreement between all those with an interest in airport security.
The Government believe that subsections (9) and (10) to proposed new section 29C should not be included in the Bill. We all agree on the principles of transparency and accountability and they run through the entirety of the current provisions. The act of producing a risk report and an airport security plan to support security decisionsboth of which will be available to all relevant partiesis wholly transparent and provides a clear set of accountabilities. The amendment would provide no added value as such measures already exist.
Subsection (10)(a) to proposed new section 29C would create a hypothetical situation whereby the Secretary of State would need to consider whether another police force would have made different operational resource decisions. It would not be possible do that adequately without asking another police force to make such a judgment. That would be impractical since the other force would not have been privy to the discussions and arrangements that led to the final decision. It would have to go back to the start, take evidence and weigh it up. Therefore, the process would be time-consuming and could leave the Secretary of State in a dilemma as to which forces view should be given greater credence.
If, however, the Secretary of State feels that such advice would be helpful, that can be pursued under the existing provisions as drafted in the schedule. It would not be appropriate for the legislation to prescribe that in every instance when it is not relevant to the dispute. If accepted, the amendment would require the Secretary of State to consider whether another police force would have provided resources at a lower rate. That implies that policing of airports is a competitive, commercial venturethat was the discussion that we had at the beginning of the debate on the amendments tabled by the hon. Member for Bury St. Edmunds.
Resourcing costs are calculated on numerous factors such as shift patterns, management structures and the like, which may vary from force to force. The costs must reflect the circumstances of each force and the Secretary of State must consider those factors when determining if something is proportionate, rather than considering whether another force could have provided the resources more cheaply.
The schedule is designed to ensure that the procedures followed by the Secretary of State in determining a dispute are impartial and transparent, and that the determination is fair and proportionate. Comprehensive guidance material will clarify the more detailed issues raised by the amendment. I therefore invite the hon. Gentleman to withdraw his amendment.

David Ruffley: I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Jim Fitzpatrick: I beg to move amendment 303, in schedule 5, page 134, line 35, at end insert
10A Omit section 30 (supplementary orders)..

Nicholas Winterton: With this it will be convenient to discuss Government amendments 304 to 306.

Jim Fitzpatrick: Amendments 303, 305 and 306 provide for section 30 to be repealed with saving provisions to ensure that any orders made under the section are preserved. In practice, section 30 has principally been used where airports have been designated to effect the transfer of private forces to local Home Office constabularies and to make associated arrangements. The relevant orders date back to the late 1970s. As the aviation security provisions in the Policing and Crime Bill will remove the concept of designation, there is no longer any need for the Secretary of State to retain such a power.
Amendment 304 ensures that a standard definition is employed in schedule 5 wherever the phrase
dispute about the policing of a relevant aerodrome
occurs in the provisions. I beg to move the amendments.

Amendment agreed to.

Amendments made: 304, in schedule 5, page 134, line 41, at end insert
(ba) before the definition of immigration officer insert
dispute about the policing of a relevant aerodrome has the meaning given by section 29A(2);,.
Amendment 305, in schedule 5, page 136, line 24, at end insert
14 (1) The repeal of section 30 of the 1982 Act by paragraph 10A of this Schedule does not affect
(a) the validity of an order made under that section (a section 30 order) before commencement, or
(b) the operation of subsections (4) and (5) of that section in relation to such an order.
(2) In relation to any time on or after commencement, any reference in a provision of a section 30 order to a designated airport is (if that provision is capable of having continuing effect) to be read as a reference to a relevant aerodrome.
(3) In this paragraph commencement and the 1982 Act have the same meanings as in paragraph 13..(Jim Fitzpatrick.)

Schedule 5, as amended, agreed to.

Clause 62

Renaming of Independent Barring Board

Alan Campbell: I beg to move amendment 308, in clause 62, page 86, line 36, leave out 31,.

Nicholas Winterton: With this it will be convenient to discuss the following: Government amendments 309 and 310.
Government new clause 27Notification of proposal to include person in barred list: England and Wales.

This amendment requires the IBB to notify any registered party, and empowers the IBB to notify anyone else whom it is satisfied is an interested party, with reasons, when it proposes to bar someone from working with children or vulnerable adults. A further notification must give the IBBs final decisions.
Government new clause 28Notification of proposal to include person in barred list: Northern Ireland.

This amendment makes equivalent provision in relation to Northern Ireland to that made in relation to England and Wales by amendment NC27.
Government new clause 29Provision of safeguarding information to the police: England and Wales.

This amendment empowers the IBB to provide information that it has to the police, for use by the police for the purposes set out in the amendments.
Government new clause 30Provision of safeguarding information to the police: Northern Ireland.

This amendment makes equivalent provision in relation to Northern Ireland to that made in relation to England and Wales by amendment NC 29.
Government new clause 31Barring process: England and Wales.

This amendment adjusts the procedure for automatic barring so that it is the IBB that must be satisfied that a person has met prescribed criteria before the IBB is required to bar the person and makes a consequential change to the duty on the Secretary of State to check records.
Government new clause 32Barring process: Northern Ireland.

This amendment makes equivalent provision in relation to Northern Ireland to that made in relation to England and Wales by amendment NC 31.
Government amendments 307, 335 and 336
Welcome back, Minister.

Alan Campbell: Thank you, Sir Nicholas. Welcome back to you, too.
This group of amendments is designed to improve the working of the planned new vetting and barring scheme provided for under the Safeguarding Vulnerable Groups Act 2006 and, as indicated by amendment 307, the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007.
It aims to improve the safeguarding of children and vulnerable adults, and builds on the outcome of a public consultation with stakeholders on the details of the scheme's operation. We propose four main changes.
In amendments 335 and 336 we propose to remove the redundant status of
subject to monitoring and undergoing assessment
from the online status check that will be available to employers who employ people in regulated activity with children or vulnerable adults. Undergoing assessment is too sensitive a status to appear in a publicly available IT system. In addition, when people first apply to be subject to monitoring by the scheme, they will inevitably be undergoing assessment for a while, so giving them that status will be meaningless.
Instead, guidance to employers will highlight that though new applications by members of the work force to be made subject to monitoring will be processed quickly, information may still be coming in to the CRB about those people until the associated enhanced disclosure is ready to issue a few weeks after the application. Until then, employers should apply appropriate safeguards in relation to all new applicants as neither they nor the ISA will yet have the full picture. Employers will have a true guide to a person's status through a CRB enhanced disclosure, which will say clearly if the person is under consideration for barring by the ISA.
New clauses 27 and 28 strengthen the notification of employers whose employees may pose a risk of harm to the vulnerable groups. The amendment provides that when the ISA has reached the advanced stage in its consideration and proposes to bar someone from working with children or vulnerable adults subject to their representations, it must notify any interested party who has registered for notification of any change in the person's status in the schemenormally an employer in regulated activity with the vulnerable groups.
Also, if the ISA is satisfied that any other party has a legitimate interest in the person, it may notify that party that it proposes to bar the person. Such a party might be an employer of a person in regulated activity who has not yet had the opportunity to register his or her interest, because of the scheme's phasing-in period.
A person whom the ISA proposes to bar has eight weeks to make representation, and there might be a further period of time before the ISA is able to make its final decision. We do not believe that it is sustainable for the ISA to be aware of a risk posed by that person during that period but that the employer not be aware. It will be for employers to determine what action it is reasonable and appropriate for them to take in those circumstances, and guidance to employers will advise on what they might do if they receive such a notification.
For example, they might suspend the person or move him to work other than with the vulnerable groups. I stress again that the ISA is at an advanced stage in its process when it makes the notification. It has made a finding of fact and a judgment that it would be appropriate to bar, and has invited the individual to make representation about its decisions.
New clauses 29 and 30 give the ISA an explicit power to provide information to the police about people who come to its notice where that is necessary for the purposes of crime prevention, detection or investigation. Normally, the ISA will receive information from the police. However, there may be exceptional circumstances where the ISA receives information that is unavailable to a particular police force about a person, but the ISA knows that that force has an interest in them and can form a view that they pose a risk of harm. The ISA should then have the power to inform the police in order to prevent crime. The police might then notify any known employer, local childrens services or adult social services, who would be able to take appropriate action if necessary.
New clauses 31 and 32 change the way in which the scheme will process automatic barring. Certain criminal offences, which are set out in secondary legislation, will cause the offender to be barred automatically. Both the 2006 Act and the 2007 order envisaged the CRB finding such offences in the police national computer, and the ISA then simply being required to bar the offender. Practice has shown that life is not so simple, because, in some cases, the circumstances in which the offence was committed need to be checked. For example, in some cases the age of the offender, and, occasionally, the victim, need to be clarified before it can be confirmed whether the prescribed criteria have been met, so an automatic bar should be applied.
ISA case officersrather than the CRB, whose function is data processingwill establish the details of the circumstances in which an offence was committed. Indeed, the ISA has already started that work under transitional arrangements that were approved by Parliament last November. We need to reflect such practical experience in permanent legislative provisions.

David Ruffley: I briefly want to confirm that the Opposition attaches as much importance as the Government to the safeguarding of vulnerable groups. I do not therefore have an issue of principle, but I have a query that I hope is not trivial.
Will the Minister explain why it was absolutely necessary to rename the Independent Barring Board? I ask that for two reasons. First, that original title has an element of stigma and sanction, which is a good thingbarring is a good word. Secondly, the Opposition are often struck by the remorseless amount of change that we see from the Government. I forget whether it was Bolingbroke or Halifax who said:
When it is not necessary to change, it is necessary not to change.

Simon Burns: It was Falkland.

David Ruffley: My hon. Friend, who is a more distinguished historian than I will ever be, corrects me from a sedentary position. It was a grand old Tory who said it in any event.
It is a serious point that remorseless relabelling, rebranding and rebadgingto use terrible PR-speakis something that Government should avoid as frequently as possible. Will the Minister, as a careful and prudent keeper of the public purse in relation to the Home Office budget, tell us the cost of the renaming in terms of changing letterheads, business cards and contact details? I may well have missed something, but the change does not seem necessary. It is a semantic change that will only cost the taxpayer, and confuse people who have been cheerfully rubbing along and carrying out their lives by looking at something called a barring bodyI do not see why that name has to change, but perhaps the Minister can enlighten us.

Alan Campbell: I am genuinely and sincerely grateful to the hon. Gentleman for the Oppositions support for what we trying to do, and his reassurance that they treat the issue as importantly as we do. He said that barring was a good word in his view, and indeed it has some use as a word that sends out a message. But in reality, in the widespread consultation, the stakeholders of the vetting and barring scheme indicated that they did not particularly like the word barring, and preferred the word safeguarding, because that gives greater prominence to the safeguarding agenda. It grew from them, as opposed to the Government seeking to change something for the sake of it, and I believe that it sends out the right message.
The hon. Gentleman asked about costs, particularly of letterheads. I am informed that the IBB never had letterheads, so there would be no cost, but I will check that, and if I find any costs, I will come back to him.

Amendment 308 agreed to.

Amendments made: 309, in clause 62, page 87, line 1, leave out 1 to 21 and insert 2 to 6, 8 to 21.

This amendment deletes the replacement of IBB by ISA in paragraphs 1 and 7 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006 because amendment NC31 amends those paragraphs so that they refer to the ISA rather than to the IBB.
Amendment 310, in clause 62, page 87, line 6, after (asp 14), insert
(na) the following enactments in the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007 (S.I. 2007/1351 (N.I. 11)) (including any relevant headings)
(i) Articles 2, 5, 6, 8, 10, 19, 29, 37 to 49 and 52,
(ii) paragraphs 2 to 6, 8 to 21, 23 and 25 of Schedule 1,
(iii) paragraphs 4 and 8 of Schedule 2,
(iv) paragraph 2 of Schedule 3, and
(v) paragraphs 1 to 3 of Schedule 6,.(Mr. Campbell.)

This amendment replaces IBB by ISA in provisions of the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007.

Clause 62, as amended, ordered to stand part of the Bill.

Nicholas Winterton: We come to a point where I am obliged to ask whether I have the Committees agreement to put together the questions on whether clauses 63 to 76, to which no amendments have been tabled, should stand part of the Bill. Both the Opposition and Government Whips have said yes.

David Ruffley: On a point of order, Sir Nicholas. I was not aware that the clauses would be dealt with so rapidly. I seek your guidance, because I should like to speak on clause 63.

Nicholas Winterton: This has been a very reasonable Committee, and there has been excellent co-operation across it. Is that the only clause that the hon. Gentleman wishes to comment on? I seek guidance so that I know how to proceed.

David Ruffley: Further to my point of order, Sir Nicholas. I wish to comment on only clauses 63 and 73 in this group.

Clause 63

Educational establishments: check on members of governing body

Question proposed, That the clause stand part of the Bill.

David Ruffley: I am most grateful, Sir Nicholas, for your excellent guidance and forbearance. I am particularly pleased that you allowed me some latitude on clause 63. This important clause relates to checks on those who are or seek to be school governors, and it throws up a serious question. Subsection 13(3) of the Safeguarding Vulnerable Groups Act 2006 ensures that an officer who runs those checks does not commit a criminal offence if they do not make a check on a governor who was appointed before section 13 became law. That is a clear exception. Subsection 13(4) of that Act allows the Secretary of State by order to set a date when that exception will come to an enda sunset provision.
It is important to understand how the time scale will operate, for the simple reason that that time-limited exception allows for a check not to be run against a governor who happens to be a paedophile. How long does the Minister expect that exception under the sunset provision to exist? I do not for one second suggest that Ministers have not got their eye on that; it is clear from the explanatory notes that they take the matter seriously. I seek to make no party political or other point; this is an honest inquiry as to how long the phasing out of the exception will take. There is a difference between the exception existing for three months and it existing for a year. None of us on the Committee, and certainly not the Ministers and officials, would want to see an exception, which is there for understandable reasons, lingering on. The longer the exception is there, the less focusing there will be of the minds of appropriate officers, because the exception removes the criminal liability of those officers who fail recklessly or negligently to do the required checks of school governors.
We want to ensure that the exception for those individuals who were governors before the 2006 Act came into force does not continue for too long. We want the norm to be appropriate officers making checks on all school governors, whether they were governors before or after the passage of that Act. It is on that question of genuine, honest, non-partisan inquiry that I, and many families and schools, would like the Ministers guidance.

Sally Keeble: Further to that point, will my hon. Friend the Under-Secretary say whether a similar provision will apply to local authority members who visit schools? That issue arose some time ago in my constituency. As selected representatives we go in and out of all kinds of institutions without any checks. I have only once been asked for a police check to visit a childrens establishment, and that was when I was travelling abroad with a voluntary organisation. Elected representatives are not always immune from difficulties in this area either. Could my hon. Friend respond to that point?

Alan Campbell: I am grateful to both the hon. Member for Bury St. Edmunds and my hon. Friend the Member for Northampton, North not simply for raising the issue, but for the way in which they did so. We have a shared concern. These are important questions. It is important to get the right system in place to identify and exclude people who are at risk. We also need to give confidence to people working in schools and parents that the system is robust. That also helps to keep this as a high priority.
The hon. Gentleman raised the issue of sunsetting. We have said that we will phase in the requirements to check over a period of time, but I can assure him that this will be done on a risk basis. So the person he identifies who has never been checked and yet could be a paedophile would be placed in a very early stage in that period. While in theory there may be a short period, I can assure him that it will be the shortest period possible.
My hon. Friend raised the issue of local authority members visiting schools. To some extent it rather depends on the visit whether the local authority member does any work for the school. If they do, they will be checked. Again, we will be phasing in over a period of time. I will certainly take away the points that she raises. There are a number of people in elected positions who will fairly regularly go into schools in their area. Indeed, it is important that we can give her and the Committee the reassurance that she seeks.

Question put and agreed to.

Clause 63 accordingly ordered to stand part of the Bill.

Clauses 64 to 72 ordered to stand part of the Bill.

Clause 73

General information powers in relation to persons entering or leaving the UK

Question proposed, That the clause stand part of the Bill.

David Ruffley: The clause refers to the very important question of the powers that the state has in relation to persons entering or leaving the UK. It goes to the very heart of the broader issue of border control. It will amend the Customs and Excise Management Act 1979 by inserting a new section, which will enable an officer of Revenue and Customs to require a person entering or leaving the UK to produce their passport or travel documents and answer questions about their journey.
These are sensible powers. They are also desirable because porous borders only lend succour and aid to those who wish to commit crime. The UKs border is too porous in our view. I know that Ministers in the Home Office are not happy either. The Minister for Borders and Immigration said:
we have, compared to other rich countries, been liberal in our border controls.
I infer from that that he thinks the Government could do better at border control. If that inference is correct, Ministers should adopt the Oppositions suggestion and have a dedicated border police force to toughen up our borders.
Sixty per cent. of illegal immigrants resident in the United Kingdom arrived here illegally, the majority in the back of a lorry, extraordinarily enough. People will not need reminding that the economic and social costs of people trafficking to the UK amounted to £1 billion in 2003. Some would put the estimates much higher than that, particularly in non-pecuniary terms. We know that weapons are smuggled across UK borders and we must do better at clamping down on that.
The powers in the clause will be important in improving our performance in stamping out illegal weapon transmission into this country, people trafficking and people wishing to enter the country illegally. The powers will clamp down on those problems by sensible questions being asked of individuals along with the requirement for them to produce their passport and other documents when asked to by an official of Her Majestys Revenue and Customs.
The clause raises a bigger question. The Government have not been slouches on this issue. They have decided to enter the electronic age in announcing the e-Borders programme. I will not detain the Committee for too long on this point. The e-Borders system is under development in this country. It will ensure that the state can access a comprehensive record of everyone wanting to come into or leave this country and of everyone who crosses our borders. That will strengthen the security of those who live in and visit our country, make it easier for those who are travelling and trading legitimately, and maintain tight control of our border.
Under the e-Borders programme information will be collected from the carrier, not the passenger. The carrier will be legally required to collect information and provide it to the UK border authorities as part of a check-in process.
The clause asks sensibly for more information from individuals who wish to cross our borders. I will try not to stray out of order. The e-Borders programme must be integral to and complementary to the powers in the clause that will improve the information and details individuals must furnish when they wish to cross our borders. In that context, will the Minister say at what stage Her Majestys Government are in the e-Borders programme?
Information supplied to me and my hon. Friend the Member for Hornchurch suggests that airlines, which will be the prime furnishers under the e-Borders programme, are concerned about the costly changes they will have to make to their reservation and departure control systems to comply with the programme. They are also concerned about a lack of information from the Government to prepare them for the changes. We are advised that the e-Borders programme should have gone live on 2 October 2008, but carriers were not told until 24 October that the deadline had been revised. I have been told that the Home Office puts an unrealistic time scale on carriers making the relevant changes. Some airlines will have to make significant changes to meet the terms of the scheme as set out by the Government.
Running the e-Borders programme is a £650 million contract, which was awarded in November 2007 to Trusted Borders, a consortium led by Raytheon Systems. A delay has occurred, but I have been advised that the programme is now scheduled to start being rolled out at the end of February. That is pertinent when we are discussing the clause, because the type of information required from passengers who are, after all, crossing our borders will include personal information such as their date and place of birth, their address and the type of information that would allow them to be checked against the watch list of individuals who might pose a threat to the British state.
My information is that Trusted Borders, when asked, has given no public information on progress. One might say that that is commercial in confidence information and that it cannot really talk about it, but in these days of an ever present threat of terrorism, we are talking about a Government programme that has been announced and will allow for better alerts at relevant border points where individuals who might pose a threat to this country are identified, but we do not have a clear indication of when the e-Borders programme will be up and running. If the Minister, who has made some sensible proposals on the information individuals will have to provide, wants our support for the clause, he should also tell us where we are on the e-Borders programme.

Nicholas Winterton: I have been advised by the usual channelsI am merely a servant of the Committeethat they hope to make certain progress by the time of the Division on the Floor of the House, which I understand will take place at about 20 minutes past seven. I say that merely to concentrate the minds of Committee members.

Vernon Coaker: Thank you, Sir Nicholas. Before I address the specifics of the clause, I will give the hon. Member for Bury St. Edmunds some of the information on the e-Borders programme that he requested and that he and other Committee members might find useful. So far, the £1.2 billion e-Borders system has screened more than 78 million passengers travelling to and from the UK, leading to more than 2,700 arrests, including those of murderers, drug dealers and sex offenders. Other interventions have resulted in the seizure of improperly used British passports, the confiscation of drugs and the refusal of leave to enter to a substantial number of foreign nationals. E-Borders will screen against watch lists 60 per cent. of all passenger and crew movements in and out of the UK by December 2009, rising to 95 per cent. by December 2010 and 100 per cent. by March 2014. That answers the hon. Gentlemans specific question about the progress of the e-Borders programme, and I hope that that is of help to him and the Committee.
I thank the hon. Gentleman for his support for what I think is a reasonable change to the powers that customs officers have. Clause 73 supplements the existing customs powers available to Her Majestys Revenue and Customs and the UK Border Agency in relation to people arriving in the UK, which, broadly speaking, are currently limited to questioning travellers about their goods and baggage. Customs checks are no longer random, but risk-based and intelligence-led. Customs officers and UKBA officers need first to establish whether the person in front of them is the person they are looking for or, if they are at a busy airport, whether they have arrived on a high-risk flight that they are targeting. For that purpose, the clause gives customs officers powers to require the people to produce identity and travel documents and ask questions of passengers about their journey. That will enable officers to decide whether to proceed with further checks, such as examination of baggage.
I think that that important alignment of powers between Her Majestys Revenue and Customs officers and those of the UK Border Agency will make a significant difference, and I thank the hon. Gentleman for his support. This is one of those measures that, on reading it, I asked, Cant they do this already? It is a sensible measure, and I am glad that the hon. Gentleman supports it.

Question put and agreed to.

Clause 73 accordingly ordered to stand part of the Bill.

Clauses 74 to 76 ordered to stand part of the Bill.

Clause 77

Prohibition on importation of offensive weapons

Vernon Coaker: I beg to move amendment 311, in clause 77, page 96, line 27, after prohibited insert , subject to section 141ZC.

This amendment makes the prohibition on importation of offensive weapons subject to the exceptions in new section 141ZC of the Criminal Justice Act 1988 (inserted by amendment 313).

Nicholas Winterton: With this it will be convenient to discuss Government amendments 312 to 316, 328 to 333 and 337 to 342.

Vernon Coaker: The hon. Member for Hornchurch and I deserve to exchange wry smiles, I think. We have been trying to sort this problem out between ourselves for quite a while. The provision arises from samurai swords as much as from anything else, but we are getting there.
Clause 77, with the amendments made in part 10 of schedule 6, separates out the importation consequences of specifying a weapon in an order under section 141 of the Criminal Justice Act 1988 from the consequences that flow under section 141(1) on sale, hire and so on. In doing so, the clause provides clarity on the powers of the Scottish and UK Governments to ban offensive weapons and facilitates the development of a common border control north and south of the border to support our drive to tackle knife crime.
Amendments 311 and 314 set out exceptions to the prohibition on importation of offensive weapons, rather than defences to specific offences, as is currently the case. That means that the exceptions can be relied on in proceedings for any criminal offence, as well as in forfeiture proceedings under the Customs and Excise Management Act 1979.
Amendments 315 and 316 amend the transitional provision in clause 77. The transitional provision applies where the date of importation cannot be established beyond reasonable doubt and where that would prevent a person from being convicted. The amendments widen the transitional provision to apply to any offence under the Customs and Excise Management Act rather than to specified importation offences.
Amendments 328 to 333 and 337 to 342 amend Scottish legislation on offensive weapon bans and ensure that defences for the purposes of film, TV and theatre can apply to the offences of sale, manufacture and so on of offensive weapons in Scotland. Such defences are already available in England and Wales. I hopethe hon. Member for Hornchurch will understand thisthat this is the last time that I will have to move an amendment on the matter before this Committee or indeed the House.

James Brokenshire: I am grateful to the Minister for introducing the proposals. I think that this is either the third or the fourth time that we have had the opportunity to discuss the subject in detail. We are obviously building on the 10-minute Bill in which I initially kicked it off. It seems quite a long time ago.
I welcome the fact that the measure will be UK-wideI know from my previous discussions with the Minister that it did not apply north of the border beforeand that a number of the detailed points raised in statutory instrument Committees in relation to exemptions have been modified slightly. We will certainly keep the matter under review, as I am sure he will. Although he may believe that this is the last time that he will have cause to review the provisions, I cannot guarantee it.

Amendment 311 agreed to.

Amendments made: 312, in clause 77, page 96, line 35, leave out subsection (4).

This amendment omits the order making power to create exceptions and exemptions to the prohibition on the importation of offensive weapons, and the power to create defences to certain importation offences.
Amendment 313, in clause 77, page 97, leave out lines 7 to 35 and insert
141ZC Prohibition on importation of offensive weapons: exceptions
(1) The importation of a weapon is not prohibited by section 141ZB if one of the following exceptions applies.
(2) Exception 1 is that the weapon is imported for the purposes only of functions carried out on behalf of
(a) the Crown, or
(b) a visiting force.
(3) Exception 2 is that the weapon is imported for the purposes only of making it available to a museum or gallery which does not distribute profits.
(4) Exception 3 is that the weapon is imported for the purposes only of making it available for one or more of the following
(a) theatrical performances;
(b) rehearsals of theatrical performances;
(c) the production of films;
(d) the production of television programmes.
(5) In subsection (4)
films has the meaning given by section 5B of the Copyright, Designs and Patents Act 1988;
television programmes has the meaning given by section 405 of the Communications Act 2003.
(6) The Secretary of State may by order provide for further exceptions from the prohibition on importation of weapons under section 141ZB.
(7) Orders under this section are to be made by statutory instrument.
(8) A statutory instrument containing an order under this section may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament..

This amendment sets out exceptions to the importation prohibition, rather than defences to offences under section 50(2) and (3) of the Customs and Excise Management Act 1979. this means the exceptions can be relied on in any criminal proceedings and in forfeiture proceedings under the 1979 Act.
Amendment 314, in clause 77, page 97, line 37, at end insert
141ZD Prohibition on importation of offensive weapons: burdens of proof
(1) This section applies for the purposes of proceedings for an offence under the Customs and Excise Management Act 1979 relating to a weapon the importation of which is prohibited by section 141ZB above.
(2) An exception conferred by or under section 141ZC is to be taken not to apply unless sufficient evidence is adduced to raise an issue with respect to the exception.
(3) Where sufficient evidence is adduced to raise an issue with respect to an exception, it is to be taken to apply unless the contrary is proved beyond a reasonable doubt..

This amendment makes provision about the burden of proof which will apply where a person wishes to rely on an exception to the prohibition on importation of offensive weapons in criminal proceedings.
Amendment 315, in clause 77, page 97, line 41, leave out section 50(2) or (3) and insert any provision.

This amendment amends the transitional provision which applies where the importation date cannot be established beyond reasonable doubt and this would otherwise prevent a person being convicted. It widens the provision to apply to any offence under the Customs and Excise Management Act 1979 rather than just specified importation offences.
Amendment 316, in clause 77, page 98, line 1, leave out section 50(2) or (3) and insert that provision.(Mr. Coaker.)

See Members explanatory statement for amendment 315.

Clause 77, as amended, ordered to stand part of the Bill.

Clauses 78 to 85 ordered to stand part of the Bill.

Clause 86

Minor and consequential amendments and repeals and revocations

James Brokenshire: I beg to move amendment 343, in clause 86, page 102, line 13, leave out subsections (7) and (8).

Nicholas Winterton: With this it will be convenient to discuss Government amendment 317.

James Brokenshire: Given your indication, Sir Nicholas, in terms of time and the impending division, I will be brief. However, in the short time I have been in this House it has been interesting to note how these minor inconsequential amendments provisions have grown, seeming to cede more authority to the Government to deal in secondary legislation with matters previously dealt with in primary legislation. With your leave, Sir Nicholas, I will combine my stand part comments to save time. Look at subsection (3) where
the Secretary of State may by order make such supplementary...provision...for the general purposes, or any particular purpose, of this Act or in consequence of any provision made by or under this Act.
This is extremely wide in its ambit and drafting and seems to give a broad swathe of additional powers and authority to the Government to make subsequent orders that may be important and significant by way of order-making power, rather than dealing with it by way of primary legislation, allowing a full and proper debate on the merits or otherwise of those provisions.
The amendment in my name and that of my hon. Friend the Member for Bury St. Edmunds seeks to delete subsections (7) and (8). Those subsections provide that the negative resolution mechanism will apply in circumstances where the repeal, amendment or change does not apply to a public general Act. There may well be other statutory instruments approved by affirmative resolution that may then be captured and changed by virtue of these provisions, such that they are being amended, and on the basis of this language they would suddenly become subject to the negative resolution process. It is this mission creep in respect of these clauses that seems to extend the additional powers, moving not simply into statutory instrument territory but also into the negative resolution approach. That is what I object to in the way these matters have been progressing, even over the past few years. I would urge the Minister to consider this provision more carefully in the way it has been drafted and the powers that seem to be ceded because on its current terms I do not think it is acceptable.

Alan Campbell: I am grateful to the hon. Gentleman for seeking to clarify this measure because it has prompted a Government amendment to seek to do precisely that.
If I may speak first to Government amendment 317 which is a minor technical amendment intended to clarify clause 86 (7). Subsection (7) states that the affirmative resolution procedure is not required for an order made under this clause that does not amend or repeal a provision of a public general Act. The amendment is intended to make clear that an order does not amend or repeal a provision of a public general Act as described in subsection (7) if the provisions being amended or repealed were inserted by a local Act or any other Act that is not a public general Act. Indeed, such an order would be subject to the negative resolution procedure. The hon. Gentlemans amendment 343, on the other hand, seeks to make all orders made under clause 86 subject to the affirmative resolution procedure. We believe that the affirmative resolution procedure is necessary for those orders that amend or repeal public general Acts, a point made by the hon. Gentleman, but it is not necessary for all orders made under clause 86 to be subject to that procedure. For example, the order-making power could in theory be used to replace references in secondary legislation to the Independent Barring Board with references to the Independent Safeguarding Authority should clause 62 come into force. We consider that such amendments would not warrant the use of the affirmative resolution procedure. Indeed, the clause is in line with provisions in other Acts of Parliament. For example, similar provisions were made in section 148 of the Criminal Justice and Immigration Act 2008 and section 75 of the Charities Act 2006.
I hope that the hon. Gentleman will withdraw amendment 343. I invite the Committee to support amendment 317.

James Brokenshire: An issue of principle is involved here, and although I heard what the Minister had to say I seek to divide the Committee on amendment 343.

The Committee divided: Ayes 5, Noes 8.

Question accordingly negatived.

Amendment made: 317, in clause 86, page 102, line 18, at end insert
(9) For the purposes of subsection (7), an amendment or repeal is not an amendment or repeal of a provision of a public general Act if it is an amendment or repeal of a provision which has been inserted (whether by substitution or otherwise) into such an Act by a local Act or by any other Act which is not a public general Act..(Mr. Coaker.)

New clause 86(9) ensures that an order does not amend or repeal a provision of a public general Act as described in subsection (7) if the provisions being amended or repealed were inserted by a local Act or any other Act that is not a public general Act.

Clause 86, as amended, ordered to stand part of the Bill.

Schedule 6

Minor and consequential amendments

Amendments made: 318, in schedule 6, page 142, line 24, at end insert

Access to Justice Act 1999 (c. 22)
(1) Schedule 2 to the Access to Justice Act 1999 (community legal service: excluded services) is amended as follows.
(2) In paragraph 2(3) (magistrates court proceedings in which advocacy may be funded as part of the Community Legal Service)
(a) in paragraph (l) after section insert 47M,, and
(b) after that paragraph (but before the following and) insert
(m) for the discharge or variation of an order under section 47M of the Proceeds of Crime Act 2002,
(n) which relate to a direction under section 67C of the Proceeds of Crime Act 2002,.
(3) In paragraph 3(1) (certain Crown Court proceedings in which advocacy may be funded as part of the Community Legal Service)
(a) after paragraph (a) insert
(aa) proceedings which relate to an order under section 47M authorising the detention of property;, and
(b) after paragraph (d) insert
(da) proceedings which relate to an order under section 67A authorising an appropriate officer to realise property;
(db) proceedings which relate to a direction under section 67C;.

These amendments ensure that legal aid is available for proceedings under certain provisions which the Bill inserts into the Proceeds of Crime Act 2002. These include proceedings for an order authorising the further detention of seized property and proceedings for an order authorising the sale of seized property.
Amendment 319, in schedule 6, page 142, line 26, at end insert
In section 69(1) (exercise of powers of court and receiver) for 67 substitute 67C..

Section 69 of the Proceeds of Crime Act 2002 provides how the courts must exercise their powers under certain provisions of that Act. This amendment adds powers conferred on courts by provisions of the Bill.
Amendment 320, in schedule 6, page 142, line 26, at end insert
In section 132(1) (exercise of powers of court and administrator) for 131 substitute 131C..

This makes provision equivalent to amendment 319 for Scotland.
Amendment 321, in schedule 6, page 142, line 26, at end insert
In section 217(1) (exercise of powers of court and receiver) for 215 substitute 215C..

This makes provision equivalent to amendment 319 for Northern Ireland.
Amendment 322, in schedule 6, page 142, line 30, at end insert
In section 453A(5) (offences in relation to financial investigators) for paragraph (a) substitute
(a) sections 47C to 47F or 195C to 195F (powers to seize and search for realisable property);.

This adds to the list of powers of an Accredited Financial Investigator that are relevant powers for the purposes of the offence of assaulting an accredited financial investigator who is acting in the exercise of a relevant power.
Amendment 323, in schedule 6, page 143, line 2, at end insert

Access to Justice Act 1999 (c. 22)
In paragraph 2(3)(l) of Schedule 2 to the Access to Justice Act 1999 (c. 22) (certain magistrates court proceedings in which advocacy may be funded as part of the Community Legal Service) after 295, 297, insert 297E, 297F,..

The amendment provides for legal aid to be available for applications to set aside the forfeiture of cash or for the release of cash subject to a forfeiture notice under the new provisions inserted by clause 46 of the Bill.
Amendment 324, in schedule 6, page 145, line 12, leave out any cash is detained under this Chapter and insert
cash detained under this Chapter was seized in England, Wales or Northern Ireland.

This and amendments 323 and 324 clarify that compensation under section 302 of the Proceeds of Crime Act 2002 may be claimed only in the part of the UK where the cash was seized. This is necessary because the forfeiture provisions inserted by clause 46 do not apply in Scotland.
Amendment 325, in schedule 6, page 145, line 14, leave out the magistrates court or (in Scotland) the sheriff and insert a magistrates court.

See Members explanatory statement for amendment 324.
Amendment 326, in schedule 6, page 145, line 18, at end insert
(1A) If cash detained under this Chapter was seized in Scotland the person to whom the cash belongs or from whom it was seized may make an application to the sheriff for compensation if no forfeiture order is made in respect of the cash..

See Members explanatory statement for amendment 324.
Amendment 327, in schedule 6, page 145, line 26, at end insert

UK Borders Act 2007 (c. 30)
In section 24(2)(c) of the UK Borders Act 2007 (application of Chapter 3 of Part 5 of the Proceeds of Crime Act 2002 in relation to immigration officers) for section 290 substitute sections 290 and 297A..

The UK Borders Act 2007 provides that Chapter 3 of Part 5 of the Proceeds of Crime Act 2002 applies to immigration officers as it applies to constables. This amendment deals with the application of the administrative forfeiture scheme inserted by clause 46 to cash seized by immigration officers.
Amendment 328, in schedule 6, page 146, line 29, leave out , (8) and (11A) and insert and (8).

This amendment and amendment 329 are consequential on amendments 330 and 332.
Amendment 329, in schedule 6, page 146, line 31, at end insert
(3A) In subsection (11A), as inserted by the Violent Crime Reduction Act 2006, omit
(a) paragraph (b), and
(b) the or immediately before that paragraph..

See Members explanatory statement for amendment 328.
Amendment 330, in schedule 6, page 146, line 31, at end insert
(3B) In subsection (11A), as inserted by the Custodial Sentences and Weapons (Scotland) Act 2007, omit Subject to subsection (11C),..

This amendment is consequential on amendment 332.
Amendment 331, in schedule 6, page 146, line 32, after (11D) insert
, as inserted by the Violent Crime Reduction Act 2006.

This amendment is consequential on amendment 332.
Amendment 332, in schedule 6, page 146, line 36, at end insert
(5) Omit subsections (11C) to (11E) as inserted by the Custodial Sentences and Weapons (Scotland) Act 2007..

This amendment omits provisions inserted into section 141 of the Criminal Justice Act 1988 by section 60 of the Custodial Sentences and Weapons (Scotland) Act 2007 which are no longer needed in light of the changes made by amendment 313.
Amendment 333, in schedule 6, page 146, line 37, leave out paragraph 62. (Mr. Campbell.)
This amendment is consequential on amendments 328, 329 and 331.

Schedule 6, as amended, agreed to.

Schedule 7

REPEALS AND REVOCATIONSS

Amendments made: 334, in schedule 7, page 150, line 36, at end insert

Part 3A

Proceeds of crime: confiscation
Reference
Extent of repeal
Proceeds of Crime Act 2002 (c. 29)
Section 45.
In section 87(2), the words from ; and for to the end.
Section 126.
In section 153(2), the words from ; and for to the end.
Section 194.
In section 235(2), the words from ; and for to the end.
Serious Crime Act 2007 (c. 27)
Section 78..

This makes repeals consequential on other amendments to be made in the Bill.
Amendment335, in schedule 7, page 152, line 17, at end insert
In section 31 (a) in subsections (2) and (3), paragraph (b) and the , and immediately before it, and (b) subsections (4) and (5)..

This amendment removes the status of subject to monitoring and undergoing assessment from the check of a persons status in the vetting and barring scheme, so that the only available statuses will be subject to monitoring or not subject to monitoring.
Amendment 336, in schedule 7, page 152, line 18, at end insert
Safeguarding Vulnerable Groups (Northern
Ireland) Order 2007 (S.I. 2007/1351 (N.I. 11)) In Article 33
(a) in paragraphs (2) and (3), sub-paragraph (b) and the , and immediately before it, and (b) paragraphs (4) and (5)..

This amendment makes equivalent provision in relation to Northern Ireland to that made in relation to England and Wales by amendment 335.
Amendment 337, in schedule 7, page 152, line 33, leave out , (8) and (11A) and insert and (8).

This amendment is consequential on amendment 328.
Amendment 338, in schedule 7, page 152, line 36, at end insert
In section 141, in subsection (11A) as inserted by the Violent Crime Reduction Act 2006 (a) paragraph (b), and (b) the or immediately before that paragraph..

This amendment is consequential on amendment 329.
Amendment 339, in schedule 7, page 152, line 36, at end insert
In section 141, in subsection (11A) as inserted by the Custodial Sentences and Weapons (Scotland) Act 2007, Subject to subsection (11C),..

This amendment is consequential on amendment 330.
Amendment 340, in schedule 7, page 153, line 1, leave out 141(11D) and insert
141, in subsection (11D) as inserted by the Violent Crime Reduction Act 2006.

This amendment is consequential on amendment 331.
Amendment 341, in schedule 7, page 153, line 7, at end insert
In section 141, subsections (11C) to (11E) as inserted by the Custodial Sentences and Weapons (Scotland) Act 2007..

This amendment is consequential on amendment 332.
Amendment 342, in schedule 7, page 153, line 8, omit the note.(Mr. Campbell.)

This amendment is consequential on amendments 337, 338 and 340.

Schedule 7, as amended, agreed to.

Clauses 87 and 88 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned.(Mr. Ian Austin)

Adjourned till Thursday 26 February at Nine oclock.